RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/295
23 July 2001
(01-3668)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Responses from Botswana to the questions posed by Canada, the European Communities
and their member States, Japan, Switzerland and the United States
By means of a communication from the Permanent Mission of Botswana dated 19 June 2001,
the Secretariat has received the following responses to the questions posed by Canada, the European
Communities and their member States, Japan, Switzerland and the United States, as circulated in
documents IP/C/W/261, 274, 258, 263 and 268, respectively, and to the follow-up questions posed bythe United States 268/Add.2, as circulated in document IP/C/W/268/Add.2.
_______________
CANADA
1. Please describe how the enforcement obligations (Articles 41-61 of the TRIPS Agreement and
throughout) have been implemented.
The enforcement obligations relating to Article 41-61 of the agreement are implemented as
follows:
A. Copyright and Neighbouring Rights Act, 2000
Conservatory measures to enforce rights
Section 29(1) Subject to subsection (2) where a complaint of the contravention of the provisions of
this Act is made and it is considered that a document, book or other object connected
to any investigation in regard to the comp laint, is being concealed within specified
premises, a Police Officer or such other person as the Minister may, by Order,
appoint and grant investigating powers, sha ll enter the premises to conduct a search
and seize any item found within the premises.
(2) The Police Officer or the person appointed by the Minister Under subsection (1)
(hereinafter both referred to as "the investigating officer") shall not enter, conduct a
search or seize any item in terms of subsection (1) unless he has obtained -
(a) the consent in writing of the owner of the premises or the person in charge of
the premises; or
(b) a search warrantIP/C/W/295
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(3) The court shall grant the application for a search warrant if it appears, on information
given on oath or affirmation, that there are reasonable grounds to suspect that -
(b) there are works that infringe the rights protected under the Act in the
premises;
(c) there is in the premises equipment or other device specifically designed or
adapted to circumvent any device or means intended to prevent or restrict
reproduction of a work or to impair the quality of copies made (the latter
device or means hereinafter referred to as "copy-protection or copy-
management device or means") or
(d) a document, book or other object which may afford evidence of such
contravention of the provisions of this Act is within those premises.
(4) Where a Chief or Senior Magistrate is satisfied from information given on oath or
affirmation by the investigating officer, that urgent action is required to obtain
evidence pertaining to the contravention of the provisions of this Act, which evidence
is likely to he concealed or destroyed, the Magistrate may dispense with any
procedural requirements and grant a search warrant to the investigating officer at suchtime and place and under such conditions as the urgency or the matter may require.
(5) A search warrant granted by the court shall -
(a) authorize the investigating officer mentioned in the warrant to enter the
premises identified in the warrant to conduct searches, examinations, take
extracts or copies, seize any item or to do any other thing that may assist withthe investigations;
(b) be executed by day, unless the court authorizes its execution by night; and
(c) be in force until it is executed, cancelled by the court or a period of one
month from the date of its issue expires, whichever occurs first.
(6) The investigating officer executing a search warrant under this section shall, before
such execution or upon demand by any person whose rights may be affected -
(a) present his identification card; and
(b) hand to such person a copy of the warrant.
An investigating officer shall not seize any item found within the premises being
searched in accordance with the provisions of this section unless the has handed the
person from whose possession or charge the item is being seized, a receipt of the
seizure in the prescribed from or other object has been seized shall, as long as it is inthe possession or charge of the investigating officer concerned, be allowed on request
to make copies or to take extracts from it at any reasonable time at his own expense
and under the supervision of that investigating officer or other authorized person in
the service of the Office.
(7) A person from whose possession or charge a document, book;IP/C/W/295
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(8) A person shall not be entitled to refuse to answer any question or to produce any
document, book or other objects on the ground that such answer, document, book or
other object would incriminate him.
…
(10) Subject to subsection (11) incrimina ting evidence, arising out of any answer,
document, book or other object a person may prevent to an investigating officer in
answer to an enquiry made by the investigat ing officer, shall not be admissible in any
criminal trial against that person-
(11) Any person who -
(a) obstructs or hinders the investigating officer in the performance of his
functions in terms of this section; or
(b) knowingly makes a false statement or gives a false answer to any enquiry;
shall be guilty of an offence and shall be liable, upon conviction, to a fine notexceeding Pula 2000 or to imprisonment for a term not exceeding 12 months,
or to both.
Civil remedies
Section 30(1): The court shall, subject to any other Act of Parliament, and on such terms as it may
deem reasonable, have the authority to -
(a) grant injunctions to prohibit the committing, or continued committal, of
infringement or any right protected under this Act;
(b) order the impounding of copies of works or sound recordings suspected of
being made or imported without the authorization of the owner of any right
protected under this Act, where the making or importation of copies is subject
to such authorization, as well as the impounding of the packaging of, the
implements that could be used for the making of, and the documents,
accounts or business papers referring to, such copies.
(2) In addition to any civil remedy that may be ordered by the court against any person
who has infringed any right protected under this Act, the court shall have theauthority to order the destruction or other reasonable disposition of infringing copies,
where they exist, and their packaging outside the channels of commerce in such a
manner as to avoid harm to the holder of the right, unless the owner of the right
requests otherwise;
Provided that copies and their packaging which were acquired by a third party in
good faith shall not be so destroyed.
(3) Where there is a danger that implements may be used to commit or continue to
commit acts of infringement, the court shall, whenever and to the extent that it isreasonable, order their destruction or other reasonable disposition outside the
channels of commerce in such a manner as to minimize the risks of farther
infringements.
(4) Any person who in contravention of the provisions of subsections (2) and (3), fails to
carry out the order of the court for the destruction or other reasonable disposition ofIP/C/W/295
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the infringing copies or implements, shall be guilty of an offence and upon conviction
shall be liable to a fine not exceeding P10,000 or to imprisonment for a term not
exceeding five years or to both.
Criminal sanctions
Section 31(1): Any person who contravenes the provisions of this Act so as to infringe a right
protection under this Act for profit, shall be guilty of an offence and upon conviction
shall he liable to a fine not exceeding P20,000 or to imprisonment for a term not
exceeding ten years or to both.
(2) Any person convicted of a second or subsequent offences shall be fined a minimum
of P30,000 or a maximum of P5,000,000 or be imprisoned for a term not exceeding
ten years, or to both.
Powers of Custom officials
Section 32: Any goods imported into the country that are in contravention of the provisions of this
Act, may be placed under an embargo, destroyed or otherwise disposed of as provided for under
sections 115 and 116 of the Customs and Excise Duty Act.
Measures, remedies and sanctions against abuses in respect of technical means of protection and
rights management information.
Section 33 (1):  The following acts shall be considered unlawful and, in the application of the civil
and criminal remedies under this Part, shall be assimilated to infringements of the
rights protected under this Act -
(a) the manufacture or importation for sale or rental of any device or means
specifically designed or adapted to circumvent any device or means intended
to prevent or restrict reproduction of a work, sound recording or a broadcast,
or to impair the quality of copies made (the latter device or means hereinafter
referred to as "copy-protection or copy-management device or means"); or
(b) the manufacture or importation for sale or rental of any device or means that
is susceptible to enable or assist the reception of an encrypted program,
which is broadcast or otherwise communicated to the public, including by
satellite, by those who are not entitled to receive the program;
(c) the removal or alteration of any electronic rights management information
without authority.
(d) the distribution import for distribution, broadcasting communication to the
public or making available to the public without authority, of works,
performances, sound recording or broadcasts, knowing or having reason to
know that electronic rights management information has been removed or
altered without authority.
(2) In the application of civil and criminal remedies under this Part, any illicit device and
means referred to in subsection (1) and any copy from which rights management
information has been removed, or in which such information has been altered, shall
be assimilated to infringing copies of works, and any illicit act referred to in
subsection (1) shall be treated as an infringement of copyright or related rights toIP/C/W/295
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which the civil remedies and criminal sanctions provided for in this Part are
applicable.
(4) In this section, "rights management information" means any information which
identifies the author, the work, the producer of the sound recording, the broadcaster,the performer, the performance, or any owner of a right under this Act, any
information about the terms and conditions of use of work or the performance, and
any numbers or codes that represent such information, when any of these items of a
work or a fixed performance, appears in connection with the broadcasting,
communication to the public or making available to the public of a work or a fixed
performance.
B. Industrial Property Act, 1996
Patents
Section 25(1): The owner of the patent shall, in  addition to any other rights, remedies or actions
available to him, have the right, subject to sections 26, 30 and 31, to institute court
proceedings against any person who infringes the patent by performing, without his
agreement or authorization, any of the acts referred to in section 24(2), or who
performs any act which makes it likely that infringement will occur.
(2) A plaintiff in proceedings for infringement shall be entitled to relief by way of -
(a) an interdict;
(b) delivery up or destruction of any infringing product, article or product of
which the infringing product forms an inseparable part;
(c) damages; or
(d) an account or the profits derived from the infringement.
(3) The court shall not, in awarding damages under this section, also order, in respect of
the same infringement, that the plaintiff be given an account of the profits derived by
him from the infringement.
(4) In any proceedings for infringement, the defendant may counterclaim for the
invalidation of the patent and, by way of defense, rely upon any ground on which apatent may be invalidated.
(5) In any proceedings under this section, the plaintiff shall, before he institutes the
proceedings, give notice thereof to every licensee under the patent in question whose
name is recorded in the patent register, and any such licensee shall be entitled tointervene as co-plaintiff.
(6) The court shall, in awarding damages under this section, calculate such dates taking
into account the amount of a reasonable royalty which would have been payable by a
licensee or sub licensee in respect of the patent concerned.
Section 26:  A patentee shall not be entitled to recover damages or obtain an account of profit in
respect of a patent, from a defendant who proves that at the date of the infringement he was not aware,
and had no reason to be aware of the existence of the patent and the marking of an article with the
word "patent" or "patented" or any word or words expressing or implying that a patent has beenIP/C/W/295
Page 6
obtained for the article, stamped engraved, impressed on or otherwise applied to the article shall not
be deemed to constitute notice of the existence of the patent unless such word or words are
accompanied by the number of patent.
Provided that nothing in this section shall affe ct any proceedings for an interdict in respect of
the patent in question.
Industrial Designs
Section 48(1) The owner of a registered design sh all, 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 design by performing, without his agreement or
authorization, any of the acts referred to in section 47, or who performs acts which
make it likely that infringement will occur.
(2) In any proceedings under this section, the court may grant relief by way of damages,
interdict, delivery up or destruction of any infringing product, article or product ofwhich the infringing product forms an inseparable part, or account of profits derived
from the infringement or otherwise as it may deem fit.
(3) The court shall not, in awarding damages under this section, also order, in respect of
the same infringement, that the plaintiff be given an account of the profits derived byhim from the infringement.
(4) In any proceedings under this section, the court shall have jurisdiction to order the
revocation of the registration of a design on any of the grounds specified in section
52, and any such grounds may be relied upon by way of defense.
Trademarks
Section 60(1) The owner of a mark 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 mark by using that mark with out his authorization or by performing acts
which make it likely that infringement will occur.
(2) The right conferred under this section shall extend to the use of sign similar to the
registered mark in relation to goods and services similar to those, for which the mark
has been registered, where confusion may arise in the public.
(3) The right conferred under this section shall extend to the use of a sign which
constitutes a reproduction, an imitation or a translation of a registered mark which is
well known in Botswana in relation to goods or services which are not similar to those
in respect of which a trade mark is registered:
Provided that such use of the mark in relation to those goods or services would
indicate a connection between those goods or services and the owner of the registered
mark, and the interests of the owner of the registered mark are likely to prejudiced by
such use.
(4) A Plaintiff in proceedings for infringement shall be entitled to relief by way of an
interdict, delivery up or destruction of any infringing product, article or product or
which the infringing product forms an inseparable part, damages or an account of the
profits derived from the infringement.IP/C/W/295
Page 7
(5) The court shall not, in awarding damages, also order, in respect of the same
infringement, that the plaintiff be given an account of the profits derived by him from
the infringement.
2. What protection does your Copyright le gislation afford to “foreign works”?
The Copyright and Neighbouring Rights Act of Botswana protects and accords treatment to
foreign works equal to that of its nationals.
EUROPEAN COMMUNITIES AND THEIR MEMBER STATES
A. G ENERAL 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.
Adequate provision exists in the Industrial Property Act. Section 30 (1) of the Act provides as
follows-
"30 (1) Where-
(a) the public interest, in particular national security, nutrition, health or the development
of other vital sectors of the national economy so requires; or
(b) a court or administrative body has determined that the manner of exploitation of an
invention by the owner of the patent or of his licensee is anti-competitive and the
Minister is satisfied that the exploitation of the patented invention in accordance with
this section would remedy such practice, the Minister may decide that, even withoutthe agreement or authorization of the owne r of a patent, a government agency or a
third person designated by him may, subject to the payment of an equitable
remuneration to the owner of that patent, and taking into account the economic value
of the Minister's decision, exploit the invention:
Provided that the Minister shall make his decision after hearing the owner of the patent and
any interested person if they wish to be heard."
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)).
Protection of exclusive rights for authors in re lation to their literary and artistic works, is
provided for under Section 7 of the Copyright and Neighbouring Rights Act,2000 (as read with
Sections 2 and 3 of the Act)
3. Please describe the protection accorded to authors of computer programs, databases or
compilations of data.IP/C/W/295
Page 8
The protection of authors of computer programs, databases or compilations of data is
provided for under Sections 2(definition of "literary work"), 3(2)(a), 4(1)(b) of the Copyright and
Neighbouring Rights Act,2000.
4. Please state whether your legislation provides for a rental right and, if so, the works to which
it applies.
Rental rights are provided for under Sections 7(1)(e) and 24(1)(e) of the Copyright and
Neighbouring Act,2000 and it applies to the original or a copy of an audiovisual work, a work
embodied in a sound recording, a computer program, a database or a musical work in the form of
notation, a performers fixation of his performance or copies thereof, irrespective of the ownership of
the original or copy concerned.
5. Please describe the rights granted to performers, producers of phonograms (sound
recordings) and broadcasting organisations under your legislation.
The rights granted to performers, producers of phonograms (sound recordings) and
broadcasting organisations are provided for in Sections 24, 25 and 27 of the Copyright and
Neighbouring Rights Act, 2000.
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.
The limitation in relation to the rights described above in accordance with the relevant
provisions of the Berne Conventions and Rome Conventions and in light of Articles 13 and 14.6 of
the TRIPS Agreement are provided for under Sect ion 28 of the Copyright and Neighbouring Rights
Act, 2000.
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 for performers shall be until the end of the fiftieth calendar year
following the year in which the performance was fixed.  For producers of sound recordings, the termprotection shall be until the end of the fiftieth calendar year following the year of publication or if the
sound recording has not been published, from the fixation of the sound recording until the end of the
fiftieth calendar year following the year of fixation, according to Sections 24(6) and 25(2) of the
Copyright and Neighbouring Rights Act, 2000 respectively.
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 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 is provided under Section 34 of the Copyright and Neighbouring Act 2000.
C. T
RADEMARKS
9. Please give the definition of a sign under your national legislation and explain under what
conditions it is protectable.IP/C/W/295
Page 9
The Industrial Property Act defines a mark under Section 2 as any "visible sign capable of
distinguishing the goods or services of an enterpri se" and for it to be protected it should comply with
the provisions of Section 53.
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.
In terms of Section 52(1) of the Industrial Property Act, 1996 marks in relation to services are
protectable subject matter.  Under this Act trade names are protectable while elements such as sound,
perfumes and containers are not protectable.
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.
In terms of Section 64 of the Industrial Property Act, 1996, a mark in respect of any goods or
services in respect of which it is registered on the ground that up to one month prior to following the
application, the mark had, after its registration, not been used by the registered owner or a licenseeduring a continuous period of three or more years.
(2) The Registrar shall not remove a mark from the register if the owner thereof can show
that circumstances existed which prevented the use of the mark and that there was no
intention not to use the mark in respect of those goods or services, or that there wasno intention to abandon the use of the mark in respect of the said goods or services.
(3) An application for the removal of a mark from the register of marks shall be served
on the owner thereof and filed with the Registrar in the manner and within the time
prescribed.
12. Please confirm whether or not your legislati on permits that the registration of trademarks be
indefinitely renewable.
Pursuant to Section 61 of the Industrial Property Act, 1996, after the expiration of the
duration of a mark it may be renewed upon a written request and payment of the prescribed renewal
fee by the registered owner for consecutive periods of ten years.
13. Please describe the special requirements, if any, prescribed by your legislation concerning
the use of a trademark.
The special requirements concerning the use of a trademark has been addressed in answer to
question 11 above.
D. G
EOGRAPHICAL INDICATIONS
14. Please explain whether or not your trademark registration authority refuses a trademark
application if it contains a geographical indication.
According to Section 53(2)(c) of the Industrial Property Act, 1996 the trademark registration
authority shall not register a mark if it is 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;
15. Please give the definition of a geographical indication in your legislation.IP/C/W/295
Page 10
Botswana is currently developing the legislation on Geographical Indications.  We already
have WIPO Model legislation for assistance.
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.
Please see the response to question 15.
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 names
considered as generic in your jurisdiction.
Please see the response to question 15.
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.
The definition of "industrial design" under the Industrial Property Act covers textile designs.
20. Please explain how your legislation protects right holders of a design against importing of
articles bearing embodied or copied design.
Sections 47(2) and 48 of the Act provide as follows-
"47(2) The person registered as the owner of a design shall, subject to the provision 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 Botswana, to make, import or sell any article
bearing or embodying the registered design or a design not substantially different
from the registered design, when such acts are undertaken for commercial purposes."
"48(1) The owner of a registered 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 design by performing, without his agreement or
authorization, any of the acts referred to in section 47, or who performs acts which
make it likely that infringement will occur."
21. Please state whether or not your legislati on provides for the right to issue a compulsory
licence for industrial designs.
[Response not received]
22. Please indicate for what period of time y our legislation grants protection for industrial
designs.IP/C/W/295
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According to Section 49(1) of the Industrial Property Act, 1996 industrial designs are
protected for a term of five years subject to renewal upon payment of renewal fee, for two further
consecutive periods of five years each.
F. P ATENTS
23. Please describe how your legislation defines the notions of: novelty, inventiveness and
industrial application.
The notion of novelty is defined as follows in section 8(3):
"(3) An invention is considered to be new if it does not form part of prior art."The notion of inventiveness is defined as follows in section 8(5):"(5) 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 as defined in
subsection 4(a), it would not have been obvious to a person having ordinary skill in
the art."
The notion of industrial applicability is defined as follows in section 8(6):"(6) An invention shall be considered as being industrially applicable if it can be used in
trade, or in any kind of industry including handicraft, agriculture, fishery andservices."
24. Please explain whether or not in your legisl ation, 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.
Patents rights are not enjoyed without exclusions. The exclusions are provided for under
Section 24(3) of the Industrial Property Act, 1996.
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 your
legislation and explain its formulation.  Please also explain if it has been applied in practice.
In terms of Section 8(7) of the Industrial Property Act, 1996 an invention which is contrary to
public order or morality shall not be patentable.  We do not have practicaI experience relating to itsapplicability.
26. Please explain whether or not diagnostic, therapeutic and surgical methods are excluded
from patentability in your legislation. If so, please  explain the relevant section of your legislation and
explain its formulation.
According to Section 9(1)(f) of the Industrial Property Act,1996, diagnostic, therapeutic and
surgical methods for the treatment of humans and animals are excluded from patentability.
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.
They are not excluded.IP/C/W/295
Page 12
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.
No specific provisions for protection of micro-organisms, non-essentially biological
processes, and microbiological processes in our Industrial Property Act, 1996.  For plants varieties theanswer is provided in answer to question 27 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 Section 24(2)(a) of the Industrial Property Act, 1996, Patent right holders are protected
against the importing and offering for sale of a patented invention.
30. Please state if your legislation provides fo r patent product protection of pharmaceutical and
agricultural chemical products.  In the affirmative, please indicate the legal reference.
No provision, the inadequacy will be addressed in the next amendment.
31. Please clarify if the patent protection of a process, as provided for in your legislation, covers
the product obtained directly by that process.
The patent protection of a process covers the product obtained directly by that process as
provided for under Section 24(2)(b)(ii) of the Industrial Property Act, 1996.
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.
We do not have additional conditions other than the sufficient disclosure of the invention as
provided in Article 29 of the TRIPS Agreement under Section 8(4)(b) of our Industrial Property Act,
1996.
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.
Exceptions to the exclusive rights conferred by a patent under our Industrial Property Act,
1996, are those provide for under Section 24(3)(a).
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 legislation considers individual merits in the authorization of such
use.
Sections 30 and 31 of the Industrial Property Act, 1996 provide for the granting of a
compulsory licence but the provision does not make the granting of a compulsory licence subject to
all the conditions enumerated in Article 31 of the TRIPS Agreement.  The inadequacy will be
addressed in the next amendment.
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 aIP/C/W/295
Page 13
compulsory licence shall be authorised predominantly for the supply to the domestic market of the
Member authorizing such use.
According to Section 31(7) of the Industrial Property Act, 1996, no licence shall be granted
unless the person applying for the licence has taken all reasonable steps to do so and has been unable
to obtain a licence or to obtain a licence on reasonable terms from the owner of the patent.  Nodefinition is given as to what constitutes a reasonable period of time, but following on precedent and
court decisions in Botswana what constitutes a reasonable time is determined by the circumstances of
each case.
Section 31(2) and (4)(c) of our Industrial Property Act, 1996 ensures that the use of a
compulsory licence shall be authorized predominan tly for the supply to the domestic market of the
member authorizing such use.
36. Please state if your legislation grants additional protection for innovations after the 20 years
of patent protection has lapsed.
A patents shall expire 20 years after the filing date and such we do not grant additional
protection for innovations after the 20 years of a patent protection has lapsed. (Section 27(1) of theIndustrial Property Act, 1996.)
37. Please explain how your legislation provides for the enhanced patent protection of patents or
patent applications pending on 1
st January 1995.
Section 81(4) provides as follows-
"(4) A person who, on the date of entry into force of this Act -
(a) is the owner of a patent granted in the United Kingdom or filed an application
for the grant of a patent in the United Kingdom or
(b) is the owner of an industrial design registered in the United Kingdom or has
filed an application for the registration of an industrial design in the United
Kingdom
may, within 12 months of the entry into force of this Act, file an application
for the grant of a patent for the same invention or for the registration of the
same industrial design under this Act and such application shall be accorded
the filing date or priority date accorded to the application, grant or
registration in the United Kingdom."
38. Please explain how your legislation provides for the reversal of the burden of proof in
relation to process patents.
Section 25(6) of the Industrial Property Act (see  section 7 of Act No. 19 of 1997) provides as
follows-
"(6)(a) In any proceedings for infringement, other than criminal proceedings, where the
subject matter of the patent is a process for obtaining a product, the burden of
establishing that the product was not made by the process shall rest on the defendant
if-
(i) the product is new, orIP/C/W/295
Page 14
(ii) a substantial likelihood exists that the product was made by the process and
the owner of the patent has been unable, through reasonable efforts, to
determine the process used.
(b) In requiring the production of evidence, the court shall take into account the
legitimate interests of the defendant in not disclosing his manufacturing secrets."
G. L AYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
39. Please describe how your legislation protects Topographies.
Botswana is currently developing the law for the protection of Layout-Designs of Integrated
Circuits.  We have already received a WIPO Model legislation for assistance.
40. Please explain what protection your national legislation grants to right holders against the
unlawful importation, sale or distribution for commercial purposes of topographies includingintegrated circuits or other articles in which a topography is incorporated in accordance with Article
36 of the TRIPS Agreement.
Please see the response to question 39.
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 toknow when acquiring an integrated circuit or an article incorporating such an integrated circuit that
it contains an unlawful topography.
Please see the response to question 39.
42. Please state the term of protection granted by your legislation to topographies.
Please see the response to question 39.
H. P
ROTECTION OF UNDISCLOSED 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.
The provision relating to protection of undisclosed information as required by Article 39.2 of
the TRIPS Agreement will be provided for in the next amendment of the Industrial Property Act,1996.
44. Please explain how your legislation defines undisclosed information.
Please see the response to question 43.
45. Please explain how your legislation defines data submitted to governments or governmental
agencies.
Please see the response to question 43.
I. E
NFORCEMENT
46. Please describe how your legislation provides for effective action against infringement of
intellectual property rights.IP/C/W/295
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Enforcement provisions are provided for in our legislation as follows:
(i) Industrial Property Act, 1996 Sections 25 for patents Section 48 for industrial designs
and Section 60 for trademarks.
(ii) Copyright and Neighbouring Rights Act, 2000 is Sections 29 -33
47. Please explain whether or not your legislation provides for a mechanism to appeal to judicial
bodies of final administrative decisions.
Section 77 of the Industrial Property Act enables a person who is aggrieved by any decision
of the Minister to appeal to the High Court. (Under the Constitution judicial review of administrative
action is also provided for).
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 Criminal Procedure and Evidence Act (the CP&E) and the rules of the High Court
authorize judges to order production of evidence by the opposing party.
The principles of lawyer/client and doctor/patient confidentiality are observed by our courts
save where it is vital to the outcome of a case that the confidential information be disclosed.
49. Please quote provisions of your legislati on that authorize judges to order a defendant to
desist from an infringement.
Section 30(1)(a) of the Copyright and Neighbouring Rights Act which reads . "... grant.
injunctions to prohibit the committing, or continued committal, of infringement of any right protected
under this Act."
Industrial Property Act,1996 Section 25(2)(a) "…an interdict" Section 48(2) " ... In any
proceedings under this section, the court may grant relief by way of damages, interdict, delivery up ordestruction of any infringing product, article or product of which the infringing product forms an
inseparable part or grant account of profits derived from the infringement or otherwise as it may deem
fit." and Section 60(4) "... A plaintiff in proceedings for infringement shall be entitled to relief by way
of an interdict, delivery up or destruction of any infringing product, article or product of which the
infringing product forms an inseparable part, damages or an account of the profits derived from the
infringement.
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.
Section 25(2)(c) a plaintiff in proceedings for infringement shall be entitled to relief by way
of - damages and according to section 25(6) " the court shall in awarding damages .... calculate such
damages taking into account the amount of a reasonable royalty which would have been payable by a
licensee or sub licensee in respect of the patent concerned."  That is how the provision authorizejudges to order the payment to the right holder of' adequate damages to compensate the injury
suffered under our Industrial Property Act, 1996.
51. Please quote what provisions of your legislation authorize judges to order the payment of the
right holder's expenses by the infringer.
Costs may be awarded by the court in terms of the CP&E and Rules of the High Court.IP/C/W/295
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52. Please explain if and how judges have the authority to order that infringing goods are placed
outside channels of commerce or destroyed.
The authority of judges to order that infringing goods he placed outside channels of
commerce or destroyed is provided under sectio n 30(2) of the Copyright and Neighbouring Rights
Act, 2000 which states that; "In addition to any civil remedy that may be ordered by the court against
any person who has infringed any right protected under this Act, the court shall have the authority to
order the destruction or other reasonable disposition of infringing copies, where they exist, and their
packaging outside the channels of commerce in such a manner as to avoid harm to the holder of the
right, unless the owner of the right requests otherwise;
Provided that copies and their packaging. which were acquired by a third party in good faith
shall not be so destroyed "and according to secti on 30(3) "where there is a danger that implements
may be used to commit or continue to commit acts  of infringement, the court shall whenever and to
the extent that it is reasonable, order their destruction or other reasonable disposition outside the
channels of commerce in such a manner as to minimize the risks of further infringements."
53. Please quote what provisions of your legislation authorize judges to indemnify a defendant in
the event of abuse by the plaintiff.
We do not have specific provisions in our legislation authorizing judges to indemnify a
defendant in the event of abuse by the plaintiff.
54. Please explain how your legislation impl ements Article 50 of the TRIPS Agreement.
The CP&E and the Rules of the High Court already adequately covers this.  Also all existing
intellectual property legislation, as already explained empowers the courts to grant interdicts.
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.
Under the Customs and Excise Act, the competent authority is the Permanent Secretary for
Finance and Development Planning.
56. Please indicate whether or not procedures are available to suspend the exporting of
counterfeit goods.
Yes - Section 121(10) (a) of the Customs and Excise Act.
57. Please quote what provisions of your legislation authorize the competent authorities to order
the destruction or disposal of infringing goods.
Provisions authorizing the competent authorities to order the destruction or disposal of
infringing goods are;
(i) Industrial Property Act, 1996, Section 25(2)(b) for patents which reads " A plaintiff in
proceedings for infringement shall be entitled to relief by way of - delivery up or
destruction of any infringing product, article or product of which forms aninseparable part;" For industrial design and trademarks is section 49(2) and Section
60(4) respectively, as quote in our answer to question 49 above.
(ii) Copyright and Neighbouring Rights Act 2000,Section 30(2) and (3) as quoted in
answer to question 52 above.IP/C/W/295
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58. Please indicate whether or not your legislation provides for a de minimis imports exception.
Section 20 of the Copyright and Neighbouring Rights Act permits the importation of single
copies of works for one's personal use without the authorization of the author or other owner of
copyright.
59. Please explain how your legislation impl ements Article 61 of the TRIPS Agreement.
The CP&E sets out all procedures to be followed in Botswana in criminal. proceedings and as
already indicated, all intellectual property - legislation in place in Botswana provides penalties for
infringements. (Section 31 of our Copyright and Neighbouring Rights Act, 2000, section 76(6) of the
Industrial Property Act).
JAPAN
A. COPYRIGHT AND RELATED RIGHTS
1. Please explain exceptions or exemptions of the National Treatment and Most-Favoured-
Nation Treatment under the Copyright and Neighbou ring Rights Law, if any, as permitted in
Articles 3 and 4 of the TRIPS Agreement.
We do not have exceptions or exemptions of the National Treatment and the Most Favoured
Nations treatment under our Copyright and Neighbouring Rights Act, 2000.
SWITZERLAND
A. GEOGRAPHICAL INDICATIONS
1. Please explain in detail how your legislation provides protection for geographical
indications.
Botswana is currently developing the legislation on geographical indications.  We already
have WIPO model legislation for assistance.
B. PATENTS
2. Does your legislation grant patent protection to all categories of products or are there any
exceptions?  If so, please explain in detail what kind of exceptions exist and how they comply with
Article 27 of the TRIPS Agreement.
Under our Industrial Property Act, 1996 section 24 there are patents rights subject to
exceptions provided for under section 24(3) as follows: -
(a) The rights under the patent shall not extend to -
(i) Acts in respect of articles which have been put on the market in Botswana by
the owner of the patent or with his consent.
(ii) The use of articles on aircraft, land vehicles or vehicles of other countries
which temporarily or accidentally enter the airspace, territory or waters of
Botswana,IP/C/W/295
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(iii) Acts done only for experimental purposes relating to a patented invention, or
(iv) Acts performed by any person who in good faith, before the filing or, where
priority is claimed, the priority date of the application on which the patent is
granted and in Botswana, was using the invention or was making effective
and serious preparations for such use.
(b) the right of prior user referred to in paragraph (a)(iv) may be transferred or may
devolve only together with the enterprise or business, or with that part of the
enterprise or business, in which the use of preparations for use have been made.
3. Does your legislation, in accordance with Article 27.1 in combination with Article 31 of the
TRIPS Agreement, consider impor tation as "working" a patent (and therefore preclude compulsory
licensing, if a product is being imported)?
In terms of Section 24(2) and Sections 30 and 31 of our Industrial Property Act importation is
considered as working a patent and therefore, compulsory licensing will be precluded if a product is
being imported.
4. Does your legislation make the granting of a compulsory license subject to all the conditions
enumerated in Article 31 of the TRIPS Agreement?  Please cite the relevant provisions of law.
Section 30 of the Industrial Property Act, 1996 sets out most of the conditions enumerated in
Article 31 of the TRIPS Agreement.  Article 31(1) is yet to he dealt with.  The inadequacy will be
addressed in the next amendment.
5. Does your legislation provide for the principle of the reversal of burden of proof in a process
patent litigation?  Please cite the relevant provisions of law.
Section 25(6) of the Industrial Property Act provides for this principle (See Section 7 of the
Industrial Property (Amendment) Act (No. 19 of 19971).
C. PROTECTION OF UNDISCLOSED INFORMATION
6. Please explain in detail if your legislation ensures that undisclosed test or other data
submitted by an applicant to the responsible State agency in the procedure for market authorisation of
a pharmaceutical or of an agricultural chemical product is protected against disclosure and against
unfair commercial use by a competitor, for example by prohibiting a second applicant from relying
on, or from referring to the original data of the first applicant, when applying subsequently for market
authorisation for his own product.  Does your legisl ation provide for exceptions to this? If yes, under
what conditions would such exceptions apply?  Does your legislation set a specific term of protection
for undisclosed test or other data of the first applicant?
We do not have laws for protection of undisclosed information, however, we will provide for
the provisions relating to protection of undisclosed information in our Industrial Property Act, 1996 as
section 70 in the amendment.
D. ENFORCEMENT
7. Please indicate remedies provided by your legislation, which constitute effective deterrents toinfringements of intellectual property rights.
The remedies provided by our legislation which constitutes deterrents to infringements of
intellectual property rights are provided for under the Copyright and Neighbouring Rights Act, 2000,IP/C/W/295
Page 19
Section 31(1) relating to criminal sanctions, whic h states that "Any person who contravenes the
provisions of this Act so as to infringe a right protection under this Act for profit, shall be guilty of an
offence and upon conviction shall be liable to a fine not exceeding P20, 000 or to imprisonment for a
term not exceeding ten years or to both."  And section 31(2) which reads "Any person convicted of a
second or subsequent offences shall be fi ned a minimum of P30,000 or a maximum of P5,000,000 or
be imprisoned for a term not exceeding ten years, or to both."
Section 76(6) of the Industrial Property Act sets out the criminal penalties in respect of
infringements relating to industrial property.
8. Please describe any new initiatives that are planned to improve enforcement of intellectual
property rights in your country, particularly initiatives related to criminal enforcement.
There are plans to train police, legal and customs officials in the area of intellectual property
as part of our efforts to improve on the enforcement of the intellectual property legislation.
UNITED STATES
A. GENERAL
1. Please describe, in relation to each form of intellectual property covered by the TRIPS
Agreement, including plant variety protection, the manner in which nation treatment and most
favoured nation treatment are provided to nationals of other WTO Members.
Botswana accords to nationals of other WTO members treatment no less favorable than that it
accords to its own nationals with regard to the protection of intellectual property.  Any advantage,
favor, privilege or immunity granted by a Member to the nationals of any other country is accorded
immediately and unconditionally to the nationals of all other members.  For plant varieties protection,
we are in the process of drafting legislation using a sui generis system.
2. Please provide us with a copy of Botswana’s new copyright law, the Copyright and
Neighbouring Rights Act, 2000.
Copies will be provided.
3. We are under the impression that the Copyright and Neighbouring Rights Act, 2000 was
drafted with the goal of bringing Botswanan law into compliance not only with TRIPS standards, but
also with the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty
(WPPT).  Can you tell us when Botswana expects to  deposit instruments of ratification for the WCT
and WPPT with WIPO?
In year 2002.
4. Article 11 of the TRIPS Agreement requires that rental rights for computer programs and
cinematographic works be available.  Please cite to the corresponding provision of the Copyright and
Neighbouring Rights Act, 2000.
The relevant provision according to Article 11  of the TRIPS Agreement requiring. that rental
rights for computer programs and cinematographic works be available is Section 7(1)(e) or the
Copyright and Neighbouring Rights Act 2000.  The sections states that; subject to the provisions of
sections 13 and 21, the author or other owner of copyright shall have the exclusive right to carry outor to authorize the following acts in relation to the work:IP/C/W/295
Page 20
rental or public lending of the original or a copy of an audiovisual work, a work embodied in
a sound recording, a computer, a data base or a musical work in the form of notation,
irrespective of the ownership of the original or copy concerned.
5. Article 14.2 of the TRIPS Agreement provides that producers of phonograms are to enjoy the
right to authorize or prohibit the direct or indirect reproduction of their phonograms.  Article 14.2requires that producers of phonograms are to have the right to authorize or prohibit the commercial
rental to the public of originals or copies of their phonograms.  Please describe how the Copyright
and Neighbouring Rights Act, 2000 implements these obligations and indicate the term of protection.
The rights of producers of phonograms to enjoy the right to authorize or prohibit the direct
reproduction of phonograms, and the rip. t to authorize or prohibit the commercial rental to the public
of original copies of their phonograms is provided for under Section 24(1)(c) and (e) of the Copyright
and Neighbouring Rights Act, 2000 which states that; subject to section 28, a performer shall have theexclusive right to carry out or authorize any of the following acts:
the reproduction of a fixation of his performance rental to the public or public lending of a
fixation of his performance, or copies thereof irrespective of the ownership of the copy
rented.
Section 24(6) states that; the rights shall be protected until the end of the fiftieth calendar year
following, the year in which performance was fi xed in a phonogram, or in the absence or such
fixation, from the end of the year in which performance took place.
C. TRADEMARKS
6. Please describe the subject matter that can comprise a trademark under the trademark law of
Botswana.
"Mark" means any visible sign capable of distinguishing the goods or services of an
enterprise.
7. Please describe the procedure that must be followed to register a trademark in Botswana,
citing the relevant provisions of the law, and descri be the rights that the owner of a registered mark
can exercise.
The procedure for registration of a trademark in Botswana is provided for under
Section 54 (1)(a)(b)(c) of the Industrial Property Act as follows:  an application for the registration of
a mark accompanied by such fee as may be prescribed, shall be made to the Registrar in theprescribed manner and shall contain the following: -
- a request in writing that the mark be registered; - a reproduction of the mark- a list of the goods or services, for which registration of the mark is requested, listed
under the applicable class or classes of the international Classification.
Section 54The provisions of section 18 in respect of the right of priority shall apply mutatis mutandis.Section 54(3)The applicant may, at any time before his mark is registered withdraw his application.IP/C/W/295
Page 21
The rights conferred by the registration of a mark are provided for under section 58(1) and
(2), which states that;
- no person shall use a registered mark unless he has been authorized in writing, to do
so by the owner thereof.
- the rights conferred by registration of a mark shall not extend to acts in respect of'
articles which have been put on the market in Botswana by the registered owner or
with his consent.
8. Please provide the length and terms of protection the trademark law of Botswana provides for
a trademark.
The length and terms of protection the trademark law of Botswana provides for a trademark is
provided for under Section 61(1) and (2) of the Industrial Property Act, 1996 which states that;
- the registration in respect of a mark shall expire ten years after the filing date of the
application for its registration, but may, upon the written request and payment of theprescribed renewal fee by the registered owner, be renewed for consecutive periods of
ten years.
- Where the owner of a registered mark is late paying the renewal fee, the Registrar
shall, upon payment by the said owner of such surcharge as may be prescribed, givehim a period of grace not exceeding six months within which he must pay the late
renewal fee.
9. In determining whether a mark is well-known, do the relevant authorities in Botswana take
into account the knowledge of the trademark in the relevant sector of the public, including knowledge
obtained as a result of promotion of the trademar k, as required under Article 16.2 of the TRIPS
Agreement?  Please cite any relevant laws, regulations and judicial decisions.
In terms of Section 60(3) of the Industrial Property Act, 1996 which states that "the right
conferred under this section shall extend to the use or a sign which constitute a reproduction, an
imitation or a translation of a registered mark which is well-known in Botswana in relation to goods
or services which are not similar to those in respect of which a trademark is registered;
Provided that such use of the mark in relation to those goods or services would indicate a
connection between those goods or services and the owne r of the registered mark, in the interest of the
owner of the registered mark are likely to be prejudiced by such use.  Well-known marks are protected
but the provision is not clear on whether knowledge of the mark in the relevant sector of the public,
including knowledge obtained as a result of promotion of the trademark is considered.  Theinadequacy will be addressed in the next amendment of the Industrial Property Act, 1996.
No judicial decisions can be cited as there have not a reason any court cases relating to this
issue in Botswana.
D. GEOGRAPHICAL INDICATIONS
10. Please describe in detail how the laws of Botswana provide for the recognition and protection
of geographical indications required by Article 22.2 of the TRIPS Agreement, citing to the relevant
provisions of law or regulation, and provide examples of geographical indications so protected.
Botswana does not yet have in place any legislation dealing with this matter but she is in the
process of drafting with the assistance of WIPO, legislation which meets the requirements ofIP/C/W/295
Page 22
Articles 22.3 and 23.2 of the TRIPS Agreement.
 11. Please describe in detail the manner in which the higher level of protection required for
wines and spirits under Article 23.2 of the TRIPS Ag reement is implemented, citing to the relevant
provisions of law or regulation, and provide examples of geographical indications for such products.
Please see the response to question 10.
Follow-up question:
Please explain whether the trademark registration authority of Botswana will refuse a
trademark application if it contains a geographic in dication that is not misleading with regard to the
origin of the goods, their nature or other characteristics.
The Registrar in Botswana will not refuse to re gister a trademark application if it contains a
geographical indication which is not misleading with regard to the origin of the goods, their nature or
other characteristics.  In terms of Section 53(2)(c) of the Industrial Property Act, the Registrar will
decline registration only where a mark is likely to mislead the public or trade circles, in particular asregards the geographical origin of the goods or services concerned, or their nature or characteristics.
E. INDUSTRIAL DESIGNS
12. Please describe the procedure that must be followed to obtain protection for industrialdesigns, citing to the provisions of the law of Botswana, and describe the nature of the protection
provided.
The procedure for obtaining protection for industrial designs is as provided for under
section 42 of the Industrial Property Act, 1996, which states that;
(1) An application for the registration of a design shall be made to the Registrar in the
prescribed manner and shall be accompanied by the following -
(a) a request, in writing, that the design be registered;
(b) drawings, photographs or other graphic representations of the article
embodying the design;
(c) a statement, in writing, indicating the kind of products for which the design is
to be used; and
(d) such application fee as may be prescribed.
(2) Where the design is two-dimensional, the application may be accompanied by a
specimen of the article embodying the design.
(3) Any person who makes an application to the Registrar for registration of a design but
is not the creator of the design shall furnish to the Registrar, in writing, such proof of
his title or authority to apply for registration as may be prescribed.
(4) An application under this section may be in respect of two or more designs:
provided that the designs relate to the same class of International Classification or to
the same set or composition of articles.IP/C/W/295
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(5) For purposes of these sections 11 International Classification" means the
classification according to Locarno Agreement of 5th October, 1968, establishing an
International Classification for Industrial Designs.
(6) The application, at the time of filing, may contain a request that the publication of
industrial design, upon registration, be deferred for a period not exceeding twelvemonths from the date of filing or, if priority is claimed, from the date of priority, of
application.
(7) The applicant may, at any time before registration of a design withdraw his
application.
The nature of protection is provided for under section 47 of the same Act, which reads;
(1) No person shall exploit, in Botswana a design registered in Botswana unless he has
been authorized, in writing, to do so by the owner of that registered 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 Botswana to make, import or sell any article
bearing or embodying the in registered design or a design not substantially differentfrom the registered design, when such acts are undertaken for commercial purposes.
(3) For the purposes of this section, exploitation of a registered design means the doing
of any act specified in subsection(2)
(4) The rights of the owner of a registered design shall not extend to acts in respect of
which articles, which have been put on the market in Botswana by such owner, orwith his consent.
13. Please describe the procedure that must be followed to obtain protection for textile designs
and cite to the relevant provisions of law or regulation.
The definition of "industrial design" under the Industrial Property Act covers textile designs.
F. PATENTS
14. Please describe in detail the way in which the patent law of Botswana implements Article 27
of the TRIPS Agreement, indicating any exceptions pr ovided for, and including details regarding the
protection for micro-organisms and non-biological and microbiological processes and plant varieties.
Please cite to the relevant provisions of the law.
Botswana provides for the protection of patents under Part II of the Industrial Property Act of
1996.
Exceptions are provided for under Section 9 of the Industrial Property Act, 1996, which states
that;
(1) For the purposes of this Act, the following shall, even if there are inventions, not be
protected as patents
(a) a discovery;
(b) a scientific theory or mathematical method,IP/C/W/295
Page 24
(c) a literary dramatic, musical or artistic work or other aesthetic creation;
(d) a scheme, rule or method for doing business, performing a mental act or
playing a game;
(e) a program for a computer;
(f) diagnostic, therapeutic and surgical methods for the treatment of humans and
animals; and
(2) The provisions of subsection (1) (f) and (g) shall not apply to any product for use in
methods referred to therein.
There are no specific provisions for micro-organisms, non-biological and microbiological
process.  For plant varieties Botswana is developing legislation using a sui generis system of
protection.
15. Please describe in detail the rights provided patent holders under the patent law of Botswana
and cite to the relevant provisions of law.
The rights to a patent holder are provided for under Section 24 of the Industrial Property Act,
1996, which states that;
(1) No person shall exploit in Botswana, an invention patented in Botswana unless he has
been authorized, in writing to do so by the owner of the patent.
(2) For the purposes of this section, exploitation of a patented invention means -
(a) where the patent has been granted in respect of a product -
(i) making, importing into Botswana, offering for sale, or selling or
using that product,
(ii) stocking such product for purposes of offering if for sale or selling or
using it, and
(b) Where the patent has been granted in respect of a process -
(i) using that process, and(ii) doing any act referred to in paragraph (a) in respect of a product obtained
directly by means of that process.
(3)(a) The rights under the patent shall not extend to -
(i) acts in respect of articles which have been put on the market in Botswana by
the owner of the patent or with his consent.
(ii) the use of articles on aircraft, land vehicles or vehicles of other countries
which temporarily or accidentally enter the airspace, territory or waters ofBotswana,
(iii) acts done only for experimental purposes relating to a patented invention, orIP/C/W/295
Page 25
(iv) acts performed by any person who in good faith, before the filing or, where
priority is claimed, the priority date of the application on which the patent is
granted and in Botswana, was using the invention or was making effective
and serious preparations for such use.
(b) The right of prior user referred to in paragraph (a) (iv) may be transferred or may
devolve only together with the enterprise or business, or with that part of the
enterprise or business, in which the use of preparations for such use have been made.
Follow-up question:
Please explain whether a patent owner has the right to prevent another from using a patented
product under the laws of Botswana, as required  under Article 28.1(a) of the TRIPS Agreement.
Botswana confirms that such a right indeed exists under her laws and is provided for in
subsections (1) and (2)(a) of section 24 of the Industrial Property Act, 1996.
In terms thereof, a person may not, where a patent has been granted in respect of a product,
make, import, offer for sale, sell or use that product without the right holder's authorization.
16. Please describe in detail any provisions in the laws of Botswana permitting unauthorized use
of a patent, citing to the relevant provisions of law, and describe in detail the conditions under which
such use can occur.
Provisions in the law of Botswana permitting an unauthorized use of a patent are provided for
under sections 30 and 31 of the Industrial Party Act, 1996.  However section 30 is not fully in
conformity with the provisions of Article 31 of the TRIPS Agreement and will be amended in order to
make it conform.
17. What term of protection does the patent law of Botswana provide for patents?  Please
describe any provisions for extension of the term of protection and cite to the relevant provisions of
the law.
The protection of patents is provided under Section 27 of the IndustriaI Property Act, 1996,
which states that;
(1) Subject to subsection (2), a patent shall expire 20 years after the filing date thereof.
(2) In order to maintain a patent or patent application, the owner of a patent or the
applicant shall pay in advance to the Registrar for each year starting one year after
filing date of the application for the grant of the patent, such annual maintenance fee
as may be prescribed.
Provisions for extension for the term of protection is provided under section 27(3) of the same
Act which reads;
A patent shall lapse or a patent application shall be deemed to have been withdrawn if the
owner thereof fails to comply with the provisions of subsection (2):
Provided that where the owner of the patent is late paying the annual maintenance fee, the
Registrar shall, upon the payment by such owner, of such surcharge as may be prescribed, give him a
period of grace not exceeding six months, within which he must pay the said late annual maintenancefee.IP/C/W/295
Page 26
G. LAYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
18. Please describe in detail the protection for layout-designs of integrated circuits providedunder the laws of Botswana, including the term of protection, and cite to the relevant provisions of
law.
Botswana is currently developing the law for the protection of Layout-Designs of Integrated
Circuits.  We have already received a WIPO model legislation for assistance.
H. PROTECTION OF UNDISCLOSED INFORMATION
19. Please describe in detail how the laws of Botswana provide for the protection of undisclosedinformation as required by Article 39.2 of the TR IPS Agreement and provide citations to the relevant
provisions of law.
The provisions relating to protection of undisclosed information as required by Article 39.2 of
the TRIPS Agreement will be provided for in the next amendment of the Industrial Property Act,
1996.
20 Please describe in detail the manner in which protection is provided test data regarding
pharmaceutical and agricultural chemical products submitted to the government in order to obtain
marketing approval in Botswana and cite to the relevant provisions of law.
No provision, the inadequacy will be addressed in the next amendment.
21 Are other applicants for marketing approval for their own versions of a previously approved
pharmaceutical or agricultural chemical products pe rmitted to rely on data submitted by the earlier
applicant?  If so, how long a period of exclusivity is given the earlier applicant before such reliance
becomes possible.
No provision, the inadequacy will be addressed in the next amendment.
Follow-up question:
Please explain how the Intellectual Property Act of 1996 will be amended to include the
protections that are required under Articles 39.2 and 39.3 of the TRIPS Agreement.  Please addresshow the amended law will ensure that a second comer will not be allowed to rely on the data that is
submitted to the regulatory authorities in support of a pioneer drug application, as required by the
unfair commercial use provisions of Article 39.3 of the TRIPS Agreement.
Botswana's response to this question will be provided in due course.
I. ENFORCEMENT
22. Please describe in detail the manner in which the laws of Botswana provide for effective
action against infringement of intellectual property rights as required by Article 41.1 of the TRIPS
Agreement.
Action against infringement of intellectual property rights as required by Article 41.1 of the
TRIPS Agreement is provided for under Industrial Property Act, 1996 as follows;IP/C/W/295
Page 27
Patents
Section 25(1) states that the owner of the patent  shall, in addition to any other rights, remedies
or actions available to him, have the right, subject to sections 26, 30 and 31, to institute court
proceedings against any person who infringes the patent by performing, without his agreement orauthorization, any of the acts referred to in section 24(2), or who performs any act which makes it
likely that infringement will occur.
(2) A plaintiff in proceedings for infringement shall be entitled to relief by way of -
(a) an interdict;
(b) delivery up or destruction of any infringing product, article or product of
which the infringing product forms an inseparable part;
(c) damages; or
(d) an account or the profits derived from the infringement.
(3) The court shall not, in awarding damages under this section, also order, in respect of
the same infringement, that the plaintiff be given an account of the profits derived byhim from the infringement.
(4) In any proceedings for infringement, the defendant may counterclaim for the
invalidation of the patent and, by way of defense, rely upon any ground on which a
patent may be invalidated.
(5) In any proceedings under this section, the plaintiff shall, before he institutes the
proceedings, give notice thereof to every licensee under the patent in question whose
name is recorded in the patent register, and any such licensee shall be entitled to
intervene as co-plaintiff.
(6) The court shall, in awarding damages under this section, calculate such damages
taking into account the amount of a reasonable royalty which would have beenpayable by a licensee or sub licensee in respect of the patent concerned.
Section 26 states that a patentee shall not be entitled to recover damages or obtain an account
of profits in respect of a patent, from a defendant who proves that at the date of the infringement he
was aware, and had no reason to be aware, of the existence of the patent, and the making of an article
with the word "patent" or "patented" or any word or words expressing or implying that a patent has
been obtained for the article, shall not be deemed to constitute notice of the existence of the patent
unless such word or words are accompanied by the number of the patent.
Provided that nothing in this section shall affe ct any proceedings for an interdict in respect of
the patent in question.
Trademarks
Section 60 states that(1) the owner of a mark shall, in addition to any other rights, remedies or actions
available to him, have the right to institute court proceedings against any person whoIP/C/W/295
Page 28
infringes the mark by using that mark with out his authorization or by performing acts
which make it likely that infringement will occur.
(2) the right conferred under this section shall extend to the use of sign similar to the
registered mark in relation to goods and services similar to those, for which the mark
has been registered, where confusion may arise in the public.
(3) the right conferred under this section shall extend to the use of a sign which
constitutes a reproduction, an imitation or a translation of a registered mark which is
well known in Botswana in relation to goods or services which are not similar to
those in respect of which a trade mark is registered:
Provided that such use of the mark in relation to those goods or services would indicate a
connection between those goods or services and the owner of the registered mark and the interests of
the owner of the registered mark are likely to prejudice by such use.
(4) A Plaintiff in proceedings for infringement shall be entitled to relief by way of an
interdict, delivery up or destruction of any infringing product, article or product or
which the infringing product forms an inseparable part, damages or an account of the
profits derived from the infringement.
(5) The court shall not, in awarding damages, also order, in respect of the same
infringement, that the plaintiff be given an account of the profits derived by him from
the infringement.
Industrial Design
Section 48 states that
(1) the owner of a registered 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 design by performing, without his agreement or
authorization, any of the acts referred to in section 47, or who performs acts whichmake it likely that infringement will occur.
(2) in any proceedings under this section, the court may grant relief by way. of damages,
interdict, delivery up or destruction of any infringing product, article or product of
which the infringing product forms an inseparable part, or account of profits derived
from the infringement or otherwise as it may deem fit.
(3) the court shall not, in awarding damages under this section, also order, in respect of
the same infringement, that the plaintiff be given an account of the profits derived byhim from the infringement.
(4) in any proceedings under this section, the court shall have jurisdiction to order the
revocation of the registration of a design on any of the grounds specified in section
52, and any such grounds may be relied upon by way of defense.
Copyright and Neighbouring Rights Act, 2000
Section 30 and 31 provide for civil remedies and criminal sanctions against those who
infringe right holders' rights.IP/C/W/295
Page 29
Conservatory measures to enforce rights
Section 29 states that:
(1) subject to subsection (2) where a complaint of the Contravention of the provisions of
this Act is made and it is considered that a document, book or other object connected
to any investigation in regard to the comp laint, is being concealed within specified
premises, a police officer or such other person as the Minister may, by Order, appoint
and grant investigating powers, shall enter the premises to conduct a search and seize
any item found within the premises.
(2) the police officer or the person appointed by the Minister
Under subsection (1) (hereinafter both referred  to as "the investigating officer") shall not
enter, conduct a search or seize any item in terms of subsection (1) unless he has obtained -
(a) the consent in writing of the owner of the premises or the person in charge of
the premises; or
(b) a search warrant
(3) the court shall grant the application for a search warrant if it appears, on information
given on oath or affirmation, that there are reasonable grounds to suspect that -
(a) there are works that infringe the rights protected under the Act in the
premises;
(b) there is in the premises equipment or other device specifically designed or
adapted to circumvent any device or means intended to prevent or restrictreproduction of a work or to impair the quality of copies made (the latter
device or means hereinafter referred to as "copy-protection or copy-
management device or means") or
(c) a document, book or other object which may afford evidence of such
contravention of the provisions of this Act is within those premises.
(4) where a Chief or Senior Magistrate is satisfied from information given on oath or
affirmation by the investigating officer, that urgent action is required to obtain
evidence pertaining to the contravention of the provisions of this Act, which evidence
is likely to be concealed or destroyed, the Magistrate may dispense with any
procedural requirements and grant a search warrant to the investigating officer at such
time and place and under such conditions as the urgency or the matter may require.
(5) A search warrant granted by the court shall -
(a) authorize the investigating officer mentioned in the warrant to enter the
premises identified in the warrant to conduct searches, examinations, take
extracts or copies, seize any item or to do any other thing that may assist with
the investigations;
(b) be executed by day, unless the court authorizes its execution by night; and(c) be in force until it is executed, cancelled by the court or a period of one
month from the date of its issue expires, whichever occurs first.IP/C/W/295
Page 30
(6) The investigating officer executing a search warrant under this section shall, before
such execution or upon demand by any person whose rights may be affected -
(a) present his identification card; and
(b) hand to such person a copy of the warrant.
(7) An investigating officer shall not seize any item found within the premises being
searched in accordance with the provisions of this section unless the has handed the
person from whose possession or charge the item is being seized, a receipt of the
seizure in the prescribed from.
(8) A person from whose possession or charge a document, book or other object has been
seized shall, as long as it is in the possession or charge of the investigating officer
concerned, be allowed on request to make copies or to take extracts from it at anyreasonable time at his own expense and under the supervision of that investigating
officer or other authorized person in the service of the Office.
(9) A person shall not be entitled to refuse to answer any question or to produce any
document, book or other objects on the ground that such answer, document, book or
other object would incriminate him.
(10) Subject to subsection (11) incrimina ting evidence, arising out of any answer,
document, book or other object a person may prevent to an investigating officer in
answer to an enquiry made by the investigat ing officer, shall not be admissible in any
criminal trial against that person.
(11) Any person who -(a) obstructs or hinders the investigating officer in the performance of his functions in
terms of this section; or
(b) knowingly makes a false statement or gives a false answer to any enquiry; shall be
guilty of an offence and shall be liable, upon conviction, to a fine not exceeding Pula
2000 or to imprisonment for a term not exceeding 12 months, or to both.
Civil remedies
Section 30(1)
The court shall, subject to any other Act of Parliament, and on such terms as it may deem
reasonable, have the authority to -
(a) grant injunctions to prohibit the committing, or continued committal, of
infringement or any right protected under this Act;
(b) order the impounding of copies of works or sound recordings suspected of
being made or imported without the authorization of the owner of any right
protected under this Act, where the making or importation of copies is subjectto such authorization, as well as the impounding of the packaging of, the
implements that could be used for the making of, and the documents,
accounts or business papers referring to, such copies.IP/C/W/295
Page 31
(2) In addition to any civil remedy that may be ordered by the court against any person
who has infringed any right protected under this Act, the court shall have the
authority to order the destruction or other reasonable disposition of infringing copies,
where they exist, and their packaging outside the channels of commerce in such a
manner as to avoid harm to the holder of the right, unless the owner of the rightrequests otherwise;
Provided that copies and their packaging which were acquired by a third party in good faith
shall not be so destroyed.
(3) Where there is a danger that implements may be used to commit or continue to
commit acts of infringement, the court shall, whenever and to the extent that it is
reasonable, order their destruction or other reasonable disposition outside the
channels of commerce in such a manner as to minimise the risks of furtherinfringements.
(4) Any person who in contravention of the provisions of subsections (2) and (3), fails to
carry out the order of the court for the destruction or other reasonable disposition of
the infringing copies or implements, shall be guilty of an offence and upon conviction
shall be liable to a fine not exceeding P10, 000 or to imprisonment for a term notexceeding five years or to both.
Criminal Sanctions
Section 31
(1) Any person who contravenes the provisions of this Act so as to infringe a right
protection under this Act for profit, shall be guilty of an offence and upon conviction
shall be liable to a fine not exceeding P20, 000 or to imprisonment for a term not
exceeding ten years or to both.
(2) Any person convicted of a second or subsequent offences shall be fined a minimum
of P30, 000 or a maximum of P5,000,000 or be imprisoned for a term not exceeding
ten years, or to both.
Powers of Customs Officials
Section 32:  Any goods imported into the country that are in contravention of the provisions of this
Act, may be placed under an embargo, destroyed or otherwise disposed of as provided for under
sections 115 and 116 of the Customs and Excise Duty Act.
Measures, remedies and sanctions against abuses in respect of technical means of protection and
rights management information
Section 33(1) The following acts shall be considered unlawful and, in the application of the civil
and criminal remedies under this Part, shall be assimilated to infringements of the
rights protected under this Act -
(a) the manufacture or importation for sale or rental of any device or means
specifically designed or adapted to circumvent any device or means intendedto prevent or restrict reproduction of a work, sound recording or a broadcast,
or to impair the quality of copies made (the latter device or means hereinafter
referred to as "copy-protection or copy-management device or means"); orIP/C/W/295
Page 32
(b) the manufacture or importation for sale or rental of any device cxr means that
is susceptible to enable or assist the reception of an encrypted program,
which is broadcast or otherwise communicated to the public, including by
satellite, by those who are not entitled to receive the program;
(c) the removal or alteration of any electronic rights management information
without authority.
(2) In the application of civil and criminal remedies under this Part, any illicit device and
means referred to in subsection (1) and any copy from which rights management
information has been removed, or in which such information has been altered, shall
be assimilated to infringing copies of works, and any illicit act referred to in
subsection (1) shall be treated as an infringement of copyright or related rights to
which the civil remedies and criminal sanctions provided for in this Part areapplicable.
(3) In this section, "rights management information" means any information which
identifies the author, the work, the producer of the sound recording, the broadcaster,
the performer, the performance, or any owner of a right under this Act, any
information about the terms and conditions of use of the work or the performance,and any numbers or codes that represent such information, when any of these items of
a work or a fixed performance, appears in connection with the broadcasting,
communication to the public or making available to the public of a work or a fixed
performance.
23 Article 43.1 of the TRIPS Agreement requires that judges be authorized to order production
of evidence necessary to substantiate a party’s claims where that party has been unable to obtain
such evidence from the opposing party.  Please de scribe how the laws or regulations of Botswana
provide this authorization, citing to the relevant provisions of law or regulation.
Questions 23, 24, and 25 are answered in question 22 above.
24 Please describe in detail all of the civil remedies that are available to right holders under the
laws of Botswana, citing to the relevant provisions of law or regulation.
Questions 23, 24, and 25 are answered in question 22 above.
25. Please describe in detail the provisional procedures and remedies available to right holders
under the laws of Botswana, citing to the relevant provisions of law and regulation, and indicate any
condition under which a right holder may avail itself of those procedures and remedies.
Questions 23, 24, and 25 are answered in question 22 above.
J. SPECIAL REQUIREMENTS RELATED TO BORDER MEASURES
26. Please describe in detail the procedures under the laws of Botswana that provide for border
enforcement at least for trademark counterfeiting and copyright piracy, identifying the competent
authority and citing to the relevant provisions of law or regulation.
As regards Special Requirements Related to Boarder Measures Section 32 of the Copyright
and Neighbouring Rights Act, 2000 empowers Customs Officials to exercise their powers as provided
for under sections 115 and 116 of the Cu stoms and Excise duty Act, CAP 50:01.IP/C/W/295
Page 33
27. Please indicate if border enforcement is available to owners of other forms of intellectual
property and, if so, please describe the procedures and remedies available in relation to each form of
intellectual property, citing the relevant provisions of law
Please see the response to question 26.
28. Article 58 of the TRIPS Agreement specifies procedures to be followed where the competent
authorities can act ex officio.  Please explain whether the competent authorities in Botswana are
empowered to act ex officio and, if so, please iden tify the intellectual property areas subject to ex
officio action.
Please see the response to question 26.
K. CRIMINAL PROCEDURES
29. Please describe in detail how the laws of Botswana implement Article 61 of the TRIPS
Agreement that requires Members to have criminal  procedures and penalties, including imprisonment
and/or monetary fines sufficient to act as a deterrent, at least for cases of wilful trademark
counterfeiting and copyright infringement on a commercial scale.  Please cite to the relevant
provisions of law and regulation.
Section 76(6) of our Industrial Property Act stipulates the criminal sanctions envisaged by
Article 61 of the TRIPS Agreement. Furthermore, the counterfeit of a trademark is an offence under
section 376 of the Botswana Penal Code CAP 08:01. For Copyright infringement the provisions are
under Section 31 of the Copyright and Neighbouring Ri ghts Act, 2000 as shown in question 22 above.
Our Criminal Procedure and Evidence Act adequately sets out all criminal procedures to be
followed in criminal proceedings in Botswana.
30. Article 61 also requires that remedies in appropriate cases include the seizure, forfeiture and
destruction of infringing goods and any materials and implements the predominant use of which has
been the commission of the offence.  Please describe the provisions in the laws of Botswana thatprovide for such remedies, and describe the circumstances in which those remedies would be
imposed, citing to the relevant provisions of law or regulation.
Remedies including seizure, forfeiture and destruction of infringing goods and any materials
and implements the predominant use of which has been the commission of the offence are provided
for under Sections 25(2)(b), 60(4), 48(2) of the Industrial Property Act, 2000 and Section 30(1)(b), (2)
and (3) of the Copyright Act.  The relevant provisions are:
Patent
Section 25 (2) (b) A plaintiff in proceedings for infringement shall be entitled to relief by way
of delivery up or destruction of any infringing product, article or product of which the infringing
product forms an inseparable part.
Industrial Design
Section 48 (2) In any proceedings under this section, the court may grant relief by way of
damages, interdict, delivery up or destruction of any infringing product, article or product of whichthe infringing product forms an inseparable part, or account of profits derived from the infringement
or otherwise as it may deem fit.IP/C/W/295
Page 34
Marks, Collective Marks and Trade Names
Section 60 (4) A plaintiff in proceedings for infringement shall be entitled to relief by way of
an interdict, delivery up or destruction of any infringing product, article or product of which the
infringing product forms an inseparable part, damages or an account of the profits derived from theinfringement.
Copyright and Neighbouring Rights
Section 30 (1) (b) Order the impounding of copies of works or sound recordings suspected of
being made or imported without the authorization of the owner of any right protected under this Act,
where the making or importation of copies is subject to such authorization, as wen as the impoundingof the packaging of, the implements that could be used for the making of, and the documents,
accounts or business papers referring to such copies.
Section 30 (2) In addition to any civil remedy that may be ordered by the court against any
person who has infringed any right protected under this  Act, the court shall have the authority to order
the destruction or other reasonable disposition of infringing, copies, where they exist, and their
packaging outside the channels of commerce in such a manner as to avoid harm to the holder of the
right, unless the owner of the right requests otherwise;
Provided that copies and their packaging which were acquired by a third party in good faith
shall not be so destroyed.
Section 30 (3) Where there is a danger that implements may be used to commit or continue to
commit acts of infringement, the court shall whenever and to the extent that it is reasonable, order
their destruction or other reasonable disposition outside the channels of commerce in such a manneras to minimize the risks of further infringements.
31. Article 61 also indicates that Members may provide for criminal procedures and penalties in
cases of wilful infringement of other forms of intellectual property.  Please describe any provisions of
the laws of Botswana that provide for such procedures and remedies, citing to the relevant provisions
of law or regulation.
There are no provisions for criminal procedures and penalties in cases of wilful infringement
of other forms of intellectual property in our laws. As already indicated, Botswana is in the process of
legislating in respect of other forms of intellectual property apart from industrial property and
copyright.  The relevant draft Bills will contain provisions relating to this matter.
L. STATISTICAL QUESTIONS
32. Please provide statistical information related to civil copyright, trademark, geographical
indication, industrial design, patent, integrated circuit layout-design, and trade secret enforcement
for 2000, including the number of cases filed;  injunctions issued;  infringing products seized;
infringing equipment seized;  cases resolved (i ncluding settlement); and the amount of damages
awarded.
[Response not received]
33. Please provide statistical information related to criminal enforcement in the area of copyright
piracy and trademark infringement for 2000, including the number of raids, prosecutions,
convictions, and the amount of fines and/or jail terms (including whether the fines were paid and
whether the jail term was actually served or was suspended) and any other information establishingthat the criminal system operates effectively to deter copyright piracy and trademark counterfeiting.IP/C/W/295
Page 35
We do not have statistical information to provide since there were no reported cases on
criminal offences relating to intellectual properties brought before our courts in the year 2000.
__________