RESTRICTED WORLD TRADE
ORGANIZATIONIP/C/W/248
29 March 2001
(01-1568)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Responses from Namibia to questions posed by Canada,
the European Communities and their member States and Japan
By means of a communication from the Permanent Mission of Namibia, dated
27 March 2000, the Secretariat has received the following responses to questions posed by Canada,
the European Communities and their member States and Japan, which were circulated in documents
IP/C/W/245, 244 and 238, respectively.
_______________
CANADA
1. Please describe how the enforcement obligations (Articles 41-61 of the TRIPS Agreement)
have been implemented.
[Response not received]
2. What protection does your Copyright le gislation afford to "foreign works"?
Works of foreign authors from Member States of the Berne Convention, WTO and the TRIPS
Agreement are protected in the same manner as those of the local authors because we are party to
those international conventions.
EUROPEAN COMMUNITIES AND THEIR MEMBER STATES
A. GENERAL PROVISIONS
1. Please describe if your legislation includes measures necessary to protect public health and
nutrition, and to promote the public interest in se ctors of vital importance to your socio-economic and
technological development as mentioned under Arti cle 8 of the TRIPS Agreement.  If yes, please
explain how such measures are consistent with the provisions of the TRIPS Agreement.
Current legislation, which is to be repealed by a single and consolidated legislation, provide
for the protection of public health and nutrition, and promote public interest.  There are provisions in
the legislation which, bind the State to the effect of a Patent in the same manner as its subject, which
has proviso permitting State intervention for public purposes.  The intervention is allowed on suchIP/C/W/248
Page 2
terms as agreed upon with the patentee or, in the absence of such agreement on such terms as are
determined by the registrar on application by the Minister and after hearing the patentee.
Section 48, of Act No. 37 of 1952:
"(1) Where a patent is in force in respect of –
(a) a substance capable of being used as food or medicine or in the production of
food or medicine; or
(b) a process for producing any such substance; or
(c) any invention capable of being used as or as part of a surgical or curative
device; or
(d) a plant,
the registrar shall, on application made to him by any person interested, order the grant to the
applicant of a license under the patent on such terms as he thinks fit unless it appears to him
that there are good reasons for refusing the application.
"(2) In settling the terms of licenses under this section the registrar shall endeavor to
secure that food, medicines, surgical and curative devices and plants shall be available to the
public at the lowest prices consistent with patentees deriving a reasonable advantage from
their patent rights.
"(3) A license granted under paragraph (a), (b) or (c) of subsection (1), shall entitle the
licensee to make, use, exercise and vend the invention as a food or medicine or for the
purpose of the production of food or medicine or as part of a surgical or curative device, but
not for any other purpose."
The proposed Industrial Property Bill of Namibia provides that where public interest, in
particular, national security, nutrition, health or the development of,  other vital sector of the national
economy so require, the Minister may allow for exploitation of the invention by a government agencyor a third person designated by the Minister with equitable remuneration.  The relevant provision of
the Bill provides for full compliance with Article 31 of the TRIPS Agreement (Section 19 subsections
(1), (2), (3), (4)(a)(b) of the proposed Bill).
Furthermore, the Bill provides:"Where the public interest in particular, national security, nutrition, health or the development
of other vital sector of the national economy so require, the Minister may decide that, even
without the agreement of the owner of the pa tent, a government agency or a third person
designated by the Minister may exploit the invention, subject to the payment of an equitableremuneration to the said owner (…) The decision of the Minister in respect of remuneration
may be the subject of an appeal before the High Court." (Section 17(5) and (6)).
B.C OPYRIGHT AND RELATED RIGHTS
2. Please state how your legislation provides for the protection of the exclusive rights of authors
in relation to their literary and artistic works, as  specified in Article 9 of the TRIPS Agreement which
requires Members to comply with Articles 1-21 of the Berne Convention and the Appendix to the
Berne Convention (1971)).IP/C/W/248
Page 3
Protection of exclusive rights is provided for in Section 9-12 (see pages 17-18 of the amended
Act).
3. Please describe the protection accorded to authors of computer programs, databases or
compilations of data.
Computer programs are protected as literary works under Article 1 of the amended Act.
Databases or compilations of data are still being considered.
4. Please state whether your legislation provides for a rental right and, if so, the works to which it
applies.
Rental rights is referred to in Section 29 sub-section 2(b) which states clearly that the
copyright shall be infringed by a person who, withou t the license of the owner of the copyright: (…)
(b) sells, lets or by way of trade offers or expose for sale or hire in Namibia any article.
(c) refers to distribution of article for the purpose of trade.
The works to which rental rights apply in Namibia are mostly audiovisual works, musical
works and books.
5. Please describe the rights granted to performers, producers of phonograms (sound
recordings) and broadcasting organisations under your legislation.
Performers shall be granted rights under Article 46 and 47 to broadcast or communicate to the
public, the right to make fixation, and reproduction of a fixation.
6. Please state whether your legislation provides for any limitation or exception in relation to
each of the rights described above in accordance with the relevant provisions of the Berne and Rome
Conventions and in light of Articles 13 and 14.6 of the TRIPS Agreement.
General exemptions or limitations:
- Cinematographic films are under Section 14.
- Sound recordings are under Section 14.
- Broadcastings are under Section 15.
7. Please state the terms of protection of each right described above and the work or subject
matter to which it applies.
The term of protection of all the rights mentioned above is the entire life of the author and 50
years from the end of the year in which the author died.
8. Please state how your legislation grants the retroactive protection provided pursuant to
Article 18 of the Berne Convention (the obligation of which derives from Article 9 of the TRIPS
Agreement) and Article 14.6 of the TRIPS Agreement.
The expiration of the periods provided for in this law shall cause the economic rights to lapse
and the works to fall into the Public Domain, and consequently become part of the common cultural
heritage.  This falls under Section 8 (1) of the newly amended Act, and sub-sections 2-5 explains it
further.IP/C/W/248
Page 4
C.T RADEMARKS
9. Please give the definition of a sign under your national legislation and explain under what
conditions it is protectable.
Current legislation provides under Section 2 of the Trade Marks Act No. 48 of 1973 for a
definition of a mark. A mark includes a device, band, heading, label, ticket, name, signature, word,
letter, numeral or any combination thereof or a container for goods. A trademark, other than a
certification mark, means a mark used or proposed to be used in relation to goods or services.
The proposed Industrial Property Bill of Namibia, defines a mark as any visible sign capable
of distinguishing goods or services of an enterprise. Under the provisions of this Bill a mark can be
registered, if it is-
(a) capable of distinguishing the goods or services of one enterprise from those of other
enterprises;
(b) not contrary to public order or morality;
(c) not likely to mislead the public or trade circles, in particular as regards the
geographical origin of goods or services concerned or their nature or characteristics;
(d) not identical with, or is not an imitation of or does not contains as an element, an
armorial bearing, flag and other emblem, a name or abbreviation or initials of the name of, or
official sign or hallmark adopted by, an y State, intergovernmental organization or
organization created by an international convention, unless authorized by the competent
authority of the State or organization;
(e) not identical with, or constitutes a reproduction, an imitation, or a translation, liable to
create confusion of a well-known mark; (full compliance with Article 6 bis of the Paris
Convention);
(f) not identical with a mark belonging to a different proprietor and already on the
Register, or with an earlier filing or priority date, in respect of the same goods or services or
closely related goods or services, or if it does not so nearly resemble such a mark as to belikely to deceive or cause confusion.
All the provisions of the Bill which, have a bearing on the protection of a mark, were drafted
to provide full compliance with the provisions of the TRIPS Agreement, including giving an express
right of action against the use of well-known marks, as opposed to their registration (full compliancewith Article 16 of the TRIPS Agreement and Article 6 bis of the Paris Convention).
10. Please confirm whether or not services are a protectable subject matter in your trademark
law.  Please confirm if signs, such as trade names, are protectable.  Please describe if elements such
as sound, perfumes and containers are protectable.
Under the current Act, trademarks used or propos ed, to be used in relation to services may be
registered and will enjoy the same protection as those used or proposed to be used in relation to
goods.  Signs are protectable as trademarks only.  Trade names are not protectable because the current
Act does not meet the requirements of Article 2 of  the TRIPS Agreement and Namibia is not yet a
signatory to the Paris Convention.  Sound marks are not protectable at present, a trademark for
perfume is protectable but the perfume's smell is not protectable while the container for goods is
protectable if it shall not prevent the bona fide use by others of any utilitarian or functional feature
embodied in such container.IP/C/W/248
Page 5
The proposed Bill includes substantive provisions for the protection of marks including
service marks.  Such provisions of the Bill will ensure complete compliance with all the requirements
of the TRIPS Agreement. The Bill further provides for compliance with the Paris Convention.
Namibia is preparing the necessary instruments to become party to the Paris Convention.
11. Please explain what the requirements of use are, if any, as a condition for a trademark
registration.  Please explain the definition of use and the conditions of maintenance of a registration
in that respect.
Under current law, for a trademark to remain valid and unassailable, the trademark should be
used in the course of trade and in a genuine manner at least every five years.
Section 2(2)of the Trade Marks Act No. 48 of 1973 provides:
"(2) Reference in this Act to the use of a mark  shall be construed as reference to the use of
a printed or other visual representation of the mark, and in addition, in the case of a container,use of such container and, in the case of a mark which, is capable of being audibly
reproduced, the use of an audible reproduction."
Section 2(3)(a) provides that the use of a mark in relation to goods means the use upon, or in
physical or other relation to those goods. Section 2(3)(b) provides that the use of a mark in relation toservices means use in relation to the performance of such services.
Under the proposed Bill, provision is made for rights conferred by registration of mark and
the transfer of rights thereof, invalidation of a registration of mark, and removal of mark on grounds
of non-use.  Provision is also made for the right to institute court proceedings against any person whoinfringes or threatens to infringe the rights of the owner of a registered mark.  It further provides for
the duration and renewal of marks, that the Registrar or the Court would have jurisdiction in the
expungement of marks, and a period of non-use of five years. In a nutshell the provisions of the Bill
are geared towards achieving full compliance with  all the relevant provisions of the TRIPS
Agreement.
12. Please confirm whether or not your legislation permits that the registration of trademarks be
indefinitely renewable.
Under current law, registration of trademarks endures initially for a period of ten years and,
subject to the payment of fees, may be renewed indefinitely every ten years.
The proposed Bill provides for the duration and renewal of marks and a continuous period of
non-use of five years.
13. Please describe the special requirements, if any, prescribed by your legislation concerning
the use of a trademark.
Under current law, special requirements for the use of a trademark, in terms of Section 39 of
Act No. 48 of 1973 are:  that where a use of a registered mark is required to be proved for any
purpose, the Registrar or the Court may accept proof of the use of an associated registered trademark,
or of the trademark with additions or alterations not substantially affecting its identity, as equivalentto proof of the use required to be proven.  The use of the whole of the registered trademark shall be
deemed to be the use also of any registered trademark being a part thereof.
The proposed Bill provides that the Registrar not remove a mark from the register if the
owner of that mark can show that circumstances ex isted which prevented the use of  the mark and thatIP/C/W/248
Page 6
there was no intention not to use the mark in respect of those goods or services, or that there was no
intention to abandon the use of the mark in respect of the said goods or services. Other provisions the
accommodation of special circumstances in trade.
D.G EOGRAPHICAL INDICATIONS
14. Please explain whether or not your trademark registration authority refuses a trademark
application if it contains a geographical indication.
The current Act contains no reference to geographical indications, and the Registrar may
therefore register a trademark with geographical indication without extraneous proof of
distinctiveness, provided that it is distinctive and not reasonably required for  use in trade in the goods
or services concerned.
The proposed Bill contains provisions coveri ng geographical indications' protection with full
compliance with the TRIPS Agreement, especially the provisions of Articles 22–24 of the Agreement.
15. Please give the definition of a geographical indication in your legislation.
The current Act contains no reference to geographical indications.The proposed Bill defines geographical indications as indications which identify a good as
originating in the territory of a signatory to the TRIPS Agreement, or a region or locality in that
territory, where a given quality, reputation or other characteristic of good is essentially attributable to
its geographical origin.
16. Please describe and explain the provisions of your legislation establishing a link, if any,
between the characteristics of an indication and its geographical origin.
Please see the response to question 15.
17. Please describe how additional protection is granted by your legislation to wines and spirits.
Please mention other types of products, if any, covered by this additional protection.
The proposed Bill provides for the minimum requirements for the protection of geographical
indications for wines and spirits as required by the provisions of Article 23 of the TRIPS Agreement.
No other types of products are covered under the proposed Bill.
18. Please explain how exceptions under Article 24 of the TRIPS Agreement are used in your
jurisdiction.  Please provide examples of the use of the exceptions by courts or lists of namesconsidered as generic in your jurisdiction.
Exceptions to geographical indications, under the proposed Bill, have not yet been approved
by the Cabinet Committee on Legislation to be incorporated in the Bill.  Such approval is however
expected soon by the third week of April, 2001.
E.I NDUSTRIAL  DESIGNS
19. Please explain whether or not your legislation extends to the protection of designs dictated
essentially by technical or functional considerations.  Please explain how textile designs are
protected.IP/C/W/248
Page 7
The current law, the Patents and Designs Act No. 37 of 1952, incorporating provisions of the
Patents and Designs Act No. 9 of 1916, and Proclamation No. 17 of 1923, provides for the protection
Designs.  The definition of a design in Section 76 reads:
"'design' shall mean any design applicable to any article whether for the pattern, for the shape
or configuration, or for the ornament thereof or for any two or more of such purposes and by
whatever means it is applicable whether by printing, painting, embroidering, weaving,
sewing, modelling, casting, embossing, engravin g, staining, or any other means whatever,
manual, mechanical, or chemical, separate or combined, not being a design for sculpture."
The proposed Bill defines industrial design as:
"any composition of lines or colours or any three-dimensional form, whether or not associated
with lines or colours, where such composition or  form gives a special to a product of industry
or handicraft and can serve as a pattern for a product of industry or handicraft but does not
include anything in an industrial design which se rves solely to obtain a technical result and to
the extent that it leaves no freedom as regards arbitrary features of appearance."
The Locarno Agreement Establishing an International Classification for Industrial Designs is used
under the provisions of the proposed Bill, with regard to industrial designs.
Textile designs are covered under the provisions of the Bill.
20. Please explain how your legislation protects right holders of a design against importing of
articles bearing embodied or copied design.
Section 37 reads:
"(1) No person shall exploit, in Namibia, a design registered in Namibia unless he or she
has been authorized, in writing, to do so by the owner of that design.
"(2) The person registered as the owner of a design shall, subject to the provisions of this
Act, and to any rights appearing from the register of designs to be vested in any other person,
have the exclusive right, in Namibia to make, import or sell any article bearing or embodyingthe registered design, or a design substantially similar to the registered design, or a design
substantially different from the registered design, when such acts are undertaken for
commercial purposes.
"(3) The registered owner of an industrial design shall, in addition to any other rights,
remedies or actions available to him, have the right to institute court proceedings against any
person who infringes the industrial design by performing, without his agreement, any of the
acts referred to in subsection (2) or who performs acts which make it likely that infringement
will occur."
"(4) For the purpose of this section, exploitation of a registered design means the doing of
any act mentioned in subsection (2).
"(5) The rights of the owner of a registered design shall not extend to acts in respect of
which articles have been put on the market in Namibia by such owner, or with his or herconsent."
21. Please state whether or not your legislation provides for the right to issue a compulsory
licence for industrial designs.IP/C/W/248
Page 8
Current law does not provide for the right to issue a compulsory licence for industrial designs.
The proposed Bill also does not provide for the right to issue a compulsory licence for industrial
designs.
22. Please indicate for what period of time your  legislation grants protection for industrial
designs.
Under current law copyright in registered designs extend for five years extendable up to a
third term of five years.  Section 87 of Act No. 9 of 1916 reads:
"(1) When a design is registered, the registered proprietor of the design shall, save as is
provided in section seventy-eight, have copyrigh t in the design during five years from the date
of registration.
"(2) If, within the prescribed time, before the expiration of the said five years, application
for the extension of the period of copyright is made to the registrar in the prescribed manner
the registrar shall, on payment of the prescribed fee, extend the period of copyright for asecond term of five years from the original period.
"(3) If within the prescribed time before th e expiration of such second term, application
for further extension is made to the registrar in  the prescribed manner, he may, subject to any
rules under this chapter, and on payment of the prescribed fee, extend the period of copyrightfor a third term of five years from the expiration of the second term."
Under the proposed Bill, registered designs the duration of the design, also extend for five
years, and renewable for two further terms. Section 38 of the Bill reads:
"(1) The registration in respect of a design shall expire five years after the filing date of
the application for its registration, but may, upon payment of such renewal fee as may be
prescribed, be renewed for two further consecutive periods of five years each.
"(2) Where the owner of the design pays the renewal fee late, the Registrar shall, upon
payment of such surcharge by the owner as may be prescribed, give him or her a period of
grace of six months within which he or she must pay the late renewal fee."
F.P ATENTS
23. Please describe how your legislation defines the notions of: novelty, inventiveness and
industrial application.
The current law, Article 1(2) reads:
"'Invention' means any new and useful art, process, machine, manufacture or composition of
matter, or any new and useful improvement thereo f, capable of being used or applied in trade
or industry, and not known or used by others in the territory and not on sale for more than twoyears in any country outside the Territory, prior to the application for a patent under this
Proclamation."
The proposed Bill defines novelty, inventiveness and industrial application as follows:
Section 9:
"(1) (…) an invention may relate to a product or process.IP/C/W/248
Page 9
"(2) (a) An invention is new if it is not anticipated by prior art."
"(3) An invention shall be considered as invo lving an inventive step if, having regard to
the prior art relevant to the application claiming the invention and as defined in subsection
(2)(b), it would not have been obvious to a person having ordinary skill in the art.
"(4) An invention shall be considered industrially applicable if it can be made or used in
any kind of industry. “Industry” shall be understood in its broadest sense; it shall cover, in
particular, handicraft, agriculture, fishery and services.
"(5) Inventions, the commercial exploitation of which would be contrary to public order or
morality shall not be patentable."
24. Please explain whether or not in your legislation, patent or otherwise, patent rights are
enjoyed without any exclusions.  If exclusions are provided for, please describe in detail how these
exclusions are applied in legal as well as practical terms.
Under current law, no exclusions obtain for patents, while there are exclusions for
trademarks. Section 16(1) and (2) of the Trade Marks in South West Africa Act No. 48 of 1973
provides for the prohibition of registration of certain matter. It reads:
"(1) It  shall not be lawful to register as a trade mark or part of a trademark any matter the
use of which would be likely to deceive or cause confusion or would be contrary to law or
morality or would be likely to give offence or cause annoyance to any person or class of
persons or would otherwise be disentitled to protection in a court of law.
"(2) If, in the opinion of the Registrar, a tradem ark will, in use, be likely to deceive as to
the character or quality of some, but not all, of the goods or services included in the
specification, the Registrar may, notwithstanding the provisions of subsection (1) of
section 36, upon receipt of an undertaking by the proprietor of the trademark that he will limit
the use of the trademark to goods or services in relation to which such use will, in the opinion
of the registrar, not to be likely to deceive, register the trademark in respect of all the goods
and services included in the specification."
The proposed Bill provides for exclusion for bot h patents and trademarks.  Part III Section 8
reads:
"The following, even if they are inventions in terms of section 1, shall be excluded from
patent protection –
(a) discoveries, scientific theories and mathematical methods;
(b) schemes, rules or methods for doing business, performing purely mental acts or
playing games;
(c) plant or animal varieties or essentially biological processes for the production of
plants or animals, other than microbiological processes and the products of such processes;1
(d) Methods for the treatment of the human or animal body by surgical or therapy, as well
as the diagnostic methods practised on the human or animal body. This provision shall not
apply to products for the use in any of those methods."
                                                     
1 (NB: Namibia opted to develop a sui generis  system of protection on new plant varieties. The
sui generis  legislation has been developed as an integral part of the Namibian National Biodiversity Program).IP/C/W/248
Page 10
Section 9(5) reads:
"Inventions, the commercial exploitation of which would be contrary to public order or
morality shall not be patentable."
Section 41 subsection (2) reads:
"A mark cannot be validly registered if it is –
(a) incapable of distinguishing the gods or services of one enterprise from those of other
enterprises;
(b) contrary to public order or morality;
(c) likely to mislead the public or trade circles, in particular as regards the geographical
origin of the goods or services concerned or their nature or characteristics;
(d) identical with, or is an imitation of or contains as an element, an armorial bearing,
flag, and other emblem, a name or abbreviation or initials of the name of, or official sign or
hallmark adopted by, any State, intergovernmental organization or organization created by an
international convention, unless authorized by the competent authority of that State or
organization;
(e) identical with, or confusingly similar to, or constitutes a translation of, a mark or trade
name which is well known in Namibia for identical or similar goods or services of another
enterprise;
(f) identical with a mark belonging to a different proprietor and already on the Register,
or with an earlier filing or priority date, in respect of the same goods or services or closely
related goods or services, or if it so nearly resembles such a mark as to be likely to deceive or
cause confusion."
25. Please explain whether your legislation provides for the exclusion of inventions from
patentability based on ordre public or morality.  If so, please explain the relevant section of yourlegislation and explain its formulation.  Please also explain if it has been applied in practice.
Please see the response to question 1 posed by the EC, above.
26. Please explain whether or not diagnostic, th erapeutic and surgical methods are excluded
from patentability in your legislation. If so, please explain the relevant section of your legislation and
explain its formulation.
Please see the response to question 24, above.
27. Please explain whether or not plants, animals and essentially biological processes are
excluded from patentability in your legislation. If so, please explain the relevant section of your
legislation and explain its formulation.
Please see the response to question 24, above.
28. Please describe how micro-organisms, non-essentially biological processes, microbiological
processes and plant varieties are protected in your legislation. Please explain, in this respect, the
relevant sections of your legislation.IP/C/W/248
Page 11
Please see the response to question 24, above.
29. Please explain how your legislation protects patent right holders against the importing and
against the offering for sale of a patented invention.
Under current law, the effect of the patent:
"shall be to grant the patentee subject to the provisions of the law, and the conditions of the
patent, full power, sole privilege and authority by himself, his agents and licensees during the
term of the patent to make, use, exercise and vend the invention…..so that he shall have and
enjoy the whole profit and advantage accruing by reason of the invention during the term of
the patent."
Assignment and devolution of patents occur by operation of the law, amendment of specification, an
extension of the patent, voluntary surrender, endorsement of patent and compulsory licensing.
The proposed Bill, under Section 17 protects patent rights holders against the importing and
against the offering for sale of a patented invention.  Section 17 reads:
"(1) Subject to subsections (3) and (5) and section 19, the exploitation of the patented
invention in Namibia by persons other than the owner of the patent shall require the owner’s
agreement.
"(2) The owner of the patent shall, in addition to any other rights, remedies or actions
available to him or her, have the right subject to subsections (3) and (5) and section 19 to
institute court proceedings against any person who exploits the patent without his or her
agreement, in terms of subsection (1), or who performs acts which make it likely thatinfringement will occur.
"(3) The rights under the patent shall not extend –
(a) to acts of articles which have been put on the market in Namibia by the owner
of the patent or with his or her consent;
(b) to the use of articles on aircraft, land vehicles, or vessels of other countries
which temporarily or accidentally enter the airspace, territory or waters of Namibia;
or
(c) to acts done for scientific research."
"(4) A patent in respect of which Namibia is  a designated State, granted by ARIPO by
virtue of the ARIPO Protocol shall have the sa me effect in Namibia as a patent granted under
this Act unless the Registrar has communicated to ARIPO in respect of the application
thereof, a decision in accordance with the provisions of the Protocol, if a patent is granted byARIPO that patent shall have no effect in Namibia."
30. Please state if your legislation provides for patent product protection of pharmaceutical and
agricultural chemical products.  In the affirmative, please indicate the legal reference.
The current law does not make any specific reference to patent product protection of
pharmaceuticals and agricultural chemical products, but does allow for their protection through
general provisions pertaining to patentable subject matter and the absence of exclusions from
patentability.  The definition of an invention under the law broadly encompasses a wide range ofIP/C/W/248
Page 12
products, including pharmaceuticals and agro-chemicals (Patents and Designs Proclamation No. 17 of
1923 Section 1(1)(2)).
The proposed Bill, also does not make any specific provision for the product patent protection
for pharmaceutical and agro-chemicals.  However, Section 8 of the Bill pertaining to matters excludedfrom patent protection does not include both areas with Section 8(d) qualifying that:
"methods for the treatment of the human or animal body by surgery or therapy, as well as the
diagnostic methods practised on the human or animal body. This provision shall not apply to
products for use in any of those methods."
Section 9 of the Bill provides for patentability for all inventions including pharmaceuticals and agro-
chemicals without making specific reference to them.
31. Please clarify if the patent protection of a process, as provided for in your legislation, covers
the product obtained directly by that process.
Current law (Proclamation No.17 of 1923, S.1(2)), defines an invention broadly thus also
allowing for coverage for products obtained directly by the process.
The proposed Bill generally provides for patent protection for products obtained by a process
by not making specific exclusion and by allowing for general patentability if the product is new,
involves an inventive step and is industrially applicable (Section 9(1)-(5)).
32. Please explain the additional conditions, if any, in your legislation other than the sufficient
disclosure of the invention in Article 29 of the TR IPS Agreement (e.g. submission of justification for
access to genetic material or prior inform consent to its use).  If such additional conditions exist,please point out the relevant legislations and describe the additional conditions in detail.
Such conditions do not prevail, but under the sui generis  legislation being developed under
the auspices of the Ministry of Environment and Tourism, additional conditions other than the
sufficient disclosure of the invention are being considered.
33. Please describe if your legislation provides for limited exceptions to the exclusive rights
conferred by a patent.  If affirmative, please make a reference to relevant legislation.
The legislation makes provision for exclusions but no specific provisions for limited
exceptions (both under the current law and the proposed Bill)
34. Please explain whether or not your legislation provides for compulsory licensing. If so, please
explain in detail the conditions under which a compulsory licence may be granted.  In particular,
please explain how your national le gislation considers individual merits in the authorization of such
use.
The current law (Proclamation No. 17 of 1923) provides for compulsory licensing in respect
of patents relating to food, medicine and plants (Section 48 subsection 1(a)-(d), subsection 2-3) as
well as in respect of dependent patents (Section 49), and in case of abuse or insufficient use of patent
rights (Section 50 subsection 1-6 (a)-(f), subsection 7-10(a-b), subsection 11-14).
The proposed Bill provides for compulsory lic ensing in respect of ARIPO Protocol Patents,
exploitation by government or person thereby aut horized (Section 17 (1) –(6)) and non-voluntary
licenses (Section 19 subsection 1-3).IP/C/W/248
Page 13
35. Please explain how your legislation explicitly ensures that a proposed user has made efforts
to obtain authorization from the right holder on reasonable commercial terms and conditions and that
such efforts have not been successful within a reasonable period of time. In this context, how do you
define "reasonable period of time".  Please also explain how your legislation ensures that the use of a
compulsory licence shall be authorised predominantly for the supply to the domestic market of theMember authorizing such use.
The current law explicitly ensures that a proposed user has made efforts to obtain
authorization from the right-holder on reasonable commercial terms and conditions and that such
efforts have not been successful within a reasonable period of time and ensures that the use of a
compulsory license shall be authorized predominan tly for the supply to the domestic market of the
Member authorizing such use (Section 50 subsection 1-14; Section 51 subsection 1-3).
The current law defines "reasonable time" as a period of three years subsequent to the date on
which the patent was sealed, if any person interested can show that he has been unable to obtain a
license under a patent on reasonable terms and applies to the Registrar in a prescribed manner for a
compulsory license on the ground that the reasonable requirements of the public with respect to theinvention in question have not been or will not be satisfied.
Under the proposed Bill explicit provisions en sures that a proposed user has made efforts to
obtain authorization from the right-holder on reasonable commercial terms and conditions and that
such efforts have not been successful within a reasonable period of time and ensures that the use of acompulsory license shall be authorized predominan tly for the supply to the domestic market of the
Member authorizing such use Section 17 subsection 1-6; Section 19)
The Bill defines the "reasonable period of time" as four years from the date of filing of the
patent application or three years from the date of the grant of the patent, whichever period expires last,in which period the Registrar may grant a non-voluntary licence if the patented invention is not
worked or is insufficiently worked in Namibia and if any person proves his or her ability to work the
invention in Namibia.
36. Please state if your legislation grants additional protection for innovations after the 20 years
of patent protection has lapsed.
The current law as well as the proposed Bill do not provide for additional protection for
innovations after the 20 years of patent protection has lapsed.
37. Please explain how your legislation provides for the enhanced patent protection of patents or
patent applications pending on 1
st January 1995.
The proposed Bill has transitional provisions allowing for patents granted under the current
laws to remain in force and to be deemed to have been granted under the provisions of the Bill
(Section 67 subsection 1-3)
38. Please explain how your legislation provides for the reversal of the burden of proof in
relation to process patents.
The law (both the current and the proposed Bill) do not specifically provide for process patent
protection. However, under the provisions of the proposed Bill, the applicant is required to furnish,within the prescribed time limit, a copy of the earlier application certified as correct by the office with
which it was filed and also furnish the date and number of any application for a patent or other title of
protection filed by him/her abroad (foreign application) relating to the same or essentially the same
invention as that claimed in the application filed with the office of the Registrar (Section 13
subsection 1-4; Section 14 subsection 1-2)IP/C/W/248
Page 14
G.L AYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
39. Please describe how your legislation protects Topographies.
The current law provides for the protection of designs during copyright (Section 93
subsection 1-2 of Proclamation No. 17 of 1923)
The proposed Bill provides for the protection of designs and protection against the unlawful
importation, sale or distribution for commercial purposes of topographies including integrated circuits
or other articles in which, a topography is incorporated in accordance with Article 36 of the TRIPS
Agreement (Section 37 subsection 1-5).
40. Please explain what protection your national legislation grants to right holders against the
unlawful importation, sale or distribution for commercial purposes of topographies including
integrated circuits or other articles in which a topography is incorporated in accordance with
Article 36 of the TRIPS Agreement.
Same as in response to question 39, above.
41. Please explain how your legislation provides for the derogation from Article 36 as specified
in Article 37 of the TRIPS Agreement where a person has no knowledge or reasonable grounds to
know when acquiring an integrated circuit or an article incorporating such an integrated circuit thatit contains an unlawful topography.
The current law and the proposed Bill do not provide for derogation.
42. Please state the term of protection granted by your legislation to topographies.
The current law provides for a protection of five years extendable up to two consecutive terms
of five years each (Section 87 subsection 1-3 of Proclamation No. 17 of 1923)
The proposed bill provides for protection of five years renewable for two consecutive terms of
five years each (Section 38 subsection 1-2)
H.U NDISCLOSED INFORMATION
43. Please explain whether or not your legislation grants a defined period of time for the
protection of undisclosed information. If so, please give the time span.
Both the current law and the proposed Bill do not make specific provision for undisclosed
information.
44. Please explain how your legislation defines "undisclosed information".
Same as in response to question 43, above.
45. Please explain how your legislation defines da ta submitted to governments or governmental
agencies.
Same as above.IP/C/W/248
Page 15
I.E NFORCEMENT
46. Please describe how your legislation provides for effective action against infringement of
intellectual property rights.
The current law in respect of patents allows, for amendment of specification in action for
infringement, no damages in infringement action where specification amended by way of disclaimer,
correction or explanation, restriction on recovery of damages for infringement in certain cases,
procedures and conditions in action for infringement, relief for infringement of partially valid
specifications, remedies for groundless threats of infringement proceedings, power of Registrar to
make declaration as to non infringement and presumption in action for infringement where patent
relates to a new substance (Section 37 subsection 1-2; Section 38, Section 52, 53 subsection (a)-(f),
Section 54 subsection 1-4; Section 55 subsection 1-2; Section 56 subsection 1-4 and Section 57)
The proposed Bill makes provision for protection against infringement, unlawful acts and
offences (Section 61 subsection 1-4).
47. Please explain whether or not your legislation provides for a mechanism to appeal to judicial
bodies of final administrative decisions.
Both the current and the proposed bill provide for courts to have jurisdiction in cases of
dispute in matters under the bill referred to the court (Section 60 subsection 1-2)
48. Please describe how your legislation authorizes judges to order production of evidence by the
opposing party.  Please give precise information on what measures are taken to ensure the protection
of confidential information.
The general body of laws in Namibia provides that in the absence of specific provisions in the
relevant laws court rules will apply in respect of both civil and criminal proceedings.
49. Please quote provisions of your legislation that authorize judges to order a defendant to
desist from an infringement.
Same as above.
50. Please quote what provisions of your legislation authorize judges to order the payment to the
right holder of adequate damages to compensate the injury he suffered.
Same as above.
51. Please quote what provisions of your legislation authorize judges to order the payment of the
right holder's expenses by the infringer.
Same as above.
52. Please explain if and how judges have the authority to order that infringing goods are placed
outside channels of commerce or destroyed.
Same as above.
53. Please quote what provisions of your legislation authorize judges to indemnify a defendant in
the event of abuse by the plaintiff.
Same as above.IP/C/W/248
Page 16
54. Please explain how your legislation impl ements Article 50 of the TRIPS Agreement.
Same as above.
55. Please identify the competent authorities in your jurisdiction who receive requests from right
holders for an application to suspend the release of counterfeit goods by the customs authorities.
Same as above.
56. Please indicate whether or not procedures are available to suspend the exporting of
counterfeit goods.
Refer to Customs.
57. Please quote what provisions of your legislation authorize the competent authorities to order
the destruction or disposal of infringing goods.
Refer to Customs.
58. Please indicate whether or not your legislation provides for a de minimis imports exception.
Refer to Customs.
59. Please explain how your legislation impl ements Article 61 of the TRIPS Agreement.
Same as response to question 48 above.
JAPAN
A.C OPYRIGHT AND RELATED RIGHTS
1. Please explain exceptions or exemptions of the National Treatment and Most-Favoured-
Nation Treatment under the Copyright and Neighbouring Rights Law, if any, as permitted in Articles3
and 4 of the TRIPS Agreement.
Works of foreign authors from countries party to the Berne Union are treated in the same
manner as those of the local authors.  So far Namibia has not entered the Copyright law, the Minister
may license a country to use Namibian works free of charge.
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