WORLD TRADE
ORGANIZATIONIP/N/6/NAM/1
30 March 2001
(01-1625)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
CHECKLIST OF ISSUES ON ENFORCEMENT1
Responses from Namibia
Civil and Administrative Procedures and Remedies
(a) Civil judicial procedures and remedies
1. Specify the courts which have jurisdiction over IPR infringement cases.
There are no additional or specialized courts created for IPR cases, hence Namibia’s ordinary
civil courts adjudicate upon matters involving the infringement of intellectual property rights.
Chapter 9 of the Namibian Constitution describes the Namibian court system:Article 79 (2) of the Namibian Constitution describes the Namibian court system:Article 79 (2) of the Namibian Constitution states that the Supreme Court “shall hear and
adjudicate upon appeals emanating from the High Court, including appeals which involve the
interpretation, implementation and upholding of this Constitution and the fundamental rights and
freedoms guaranteed thereunder.”
Article 81:  “A decision of the Supreme Court sh all be binding on all other courts of Namibia
and all persons in Namibia, unless it is reversed by  the Supreme Court itself or is contradicted by an
Act of Parliament.”
Article 80 (2): The High Court has “original jurisdiction to hear and adjudicate upon all civil
disputes and criminal prosecutions, including cases  which involve the interpretation, implementation
and upholding of this Constitution and the fundamental rights and freedoms guaranteed thereunder.”
The High Court may also hear and adjudicate appeals from lower courts.
Article 83 (1): Lower courts shall be established by Act of Parliament and shall have the
jurisdiction and adopt the procedures prescribed by such Act and regulations made thereunder.”
The Act of Parliament establishing lower courts is the Magistrate Courts Act, 1944 (Act
No.32 of 1944).  Lower courts are composed of  regional courts and magistrate’s courts.
Section 29 (1) (f) of the Magistrate’s Courts Act, 1944 stipulates that the limit to the
jurisdiction of lower courts (which are not regional courts) with regard to causes of action (i.e. civil
cases) shall be a claim not exceeding N$25 000.
                                                     
1 Document IP/C/5.IP/N/6/NAM/1
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In regional courts the limit with regard to causes of action is N$100-000.
The plaintiff is the dominnus litis , i.e. he or she may decide at which court to institute action.
Section 50 (1) allows the defendant to apply to court for the removal of an action to the High
Court, if the claim in that action exceeds N$5 000 (excluding interest and costs).
2. Which persons have standing to assert IPRs? How may they be represented? Are there
requirements for mandatory personal appearances before the court by the right holder?
Which persons have standing to assert IPRs?
Copyright and Neighbouring Rights Protection Act, 1994 (Act No. 6 of 1994):
- owners of copyright (section 30 {1});
- exclusive licensees or sublicensees (section 31 {1});
- author of work (in respect of moral rights, if he or she is not also the copyright
owner) (section 25 {2});
- performers (section 47{1}).
Trade Marks in South West Africa Act, 1973 (Act No. 48 of 1973):
- Proprietor and registered user of a trademark (section 45).
Patents Act, 1978 (Act No. 57. Of 1978):Right holders and right users (section 65):
- patentee (right holder);
- exclusive licensee or sublicensee (right user).
How may they be represented?
At all levels of the court system persons with standing to assert intellectual property rights
may be represented by legal practitioners (as defined in Legal Practitioners Act, 1995 (Act No. of1995) or present their case personally (Article 12 of Constitution).
Are there requirements for mandatory personal appearances before the court by the right
holder?
Copyright and Neighbouring Rights Protection Act, 1994 (Act No. 6 of 1994):  This Act does
not contain any provision in this regard.
Trademarks in South West Africa Act, 1973 (Act No. 48 of 1973):  This Act does not contain
any provision in this regard.
Patents Act, 1978 (Act No. 57 of 1978):  This Act does not contain any provision in this
regard.
In absence of specific provisions in the relevant laws, court rules will apply:- High Court Rule 38 (2): If the right holder is to give testimony as a witness, then the
following applies: A witness must be examined  orally (so that he or she may be cross-
examined), but the court may for sufficient reason order that all or any part of theIP/N/6/NAM/1
Page 3
evidence to be adduced at a trial be given on affidavit (unless the witness concerned
is reasonably required for cross-examination by the other party)
- High Court Rule 38 (3)-(8): Evidence may be taken by a commissioner of the court in
the presence of all parties before or during the trial, which evidence is to be used inthe trial.
Interrogatories
Rule 6(1): motion proceedings in reapplication for interim orders (Provisional measures),
affidavits may be used instead of oral evidence, unless court orders otherwise (rule 6/5/g).
3. What authority do the judicial authorities h ave to order, at the request of an opposing
party, a party to a proceeding to produc e evidence that lies within its control?
Patents 57/78:  No provision.
Trademarks 48/73:  No provision.
Copyright 4/94:  No provision.Copyright 4/94:  No provision.Rule 35(7) court order on application after notice to non-complying party was served
requesting discovery.
Rule 35(11): court may during the proceedings mero motu  order production by any party of
tapes, documents in his or her power or control relating to the matter in question.
4. What means exist to identify and protect confidential information brought forward as
evidence?
Evidence: privilege; without prejudice.
5. Describe the remedies that may be ordered by the judicial authorities and criteria,
legislative or jurisprudential, for their use ;
- injunctions;
- damages, including recovery of profits, and expenses, including attorney's fees;- destruction or other disposal of infringing goods and materials/implements for
their production;
- any other remedies.
Copyright
Interdicts, damages, delivery of infringing goods (section 30 (1)], additional damages 30/6
Performers rights: destruction (section 53)
Criteria:  legislativeIP/N/6/NAM/1
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-Section 30/2 basis is reasonable royalty which would have been payable by a licensee or
sublicensee in re patent concerned
-/3:
-/5
-/6-/7
-Section 32 onus of proof.
Patents:  section 65 (3)
Interdict, delivery up of infringe product or any article or product of which the infringe
product forms an inseparable part, damages.
Section 70 (1): declaration in re groundless threats.Criteria:
Section 65/6 basis is reasonable royalty which would have been payable by a licensee or
sublicensee in re patent concerned
-66/1: presence of knowledge of illegality
-/2:  restrictions on recovery of damages/onus of proof on plaintiff to produce no. of patent if
requested by other party.
Trademarks
Section 43: indirectly pointing to damages.
No provision for criteria.
In all cases prayer as to costs to be included in prayer to court, attorney’s fees.
6. In what circumstances, if any, do judicial authorities have the authority to order the
infringer to inform the right holder of the identity of third persons involved in the
production and distribution of the goods of services found to be infringing and of theirchannels of distribution?
Evidence:  privilege.
7. Describe provisions relating to the indemnification of defendants wrongfully enjoined.
To what extent are public authorities and/or officials liable in such a situation and what
"remedial measures" are applicable to them?
No provision in Acts.
Rule 6/15 order as to costs if scandalous allegations.
8. Describe provisions governing the length and cost of proceedings.  Provide any available
data on the actual duration of proceedings and their cost.
Time limits in re pleadings Rules 17-29.IP/N/6/NAM/1
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9. Reply to the above questions in relation to any administrative procedures on the merits
and remedies that may result from these procedures.
Copyright:  tribunal.
Patents:   no provision.
Trademarks:  no provision.
Provisional Measures
(a) Judicial measures
10. Describe the types of provisional measures that judicial authorities may order, and the
legal basis for such authority.
Interlocutory interdicts may be ordered whenever a person needs protection against an
unlawful interference or threatened interference with his or her rights and it is available, among other
purposes, to prohibit the commission of a delict or crime or to restrain the breach of a statutory
provision.
Legal basis for interim interdict – Magistrate ’s court Act and rules (based on Roman-duch
law).
Requisites for an interlocutory interdict:- prima facie  right to be established on a balance of probabilities that the respondent
has invaded the right or threatens to do so.
- A well-grounded apprehension of irreparable harm, if the relief is not granted and
ultimate relief is eventually granted.
- A balance of convenience in favour of the granting of the interim relief, and
- The absence of any other satisfactory relief lesser degree of proof than for final
interdict i.e. only prima facie  or clear right must be established.
11. In what circumstances may such measures be ordered inaudita altera  parte ?
Rule 6/5/c:  if application is unopposed (i.e. if the respondent fails to notify the applicant on
or before the day mentioned in the notice of motion of his or her intention to oppose the application),
applicant may place matter on roll for hearing.
Rule 56:- Ex parte procedure if urgency requires (no giving notice to party to be affected by
order necessary, normally ex parte  only if question of law to be determined in re applicant)
- Ex parte if giving of notice would defeat the object of the application then applicant
must state these reasons on oath in his/her affidavit .
In re trial:  rule 40 (1), 40 (2) default judgement (defendant does not appear at trial), 40 (3)
absolution from the instance (plaintiff does not appear).IP/N/6/NAM/1
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12. Describe the main procedures for the init iation, ordering and maintenance in force of
provisional measures, in particular relevant time-limits and safeguards to protect the
legitimate interests of the defendant.
Initiation of provisional judicial measures
Rule 6 (1) and (2): notice of motion supported by affidavit  as to the facts upon which the
applicant relies for relief addressed to respondent (and all interested parties likely to be affected by
court order) and registrar of High Court 6 (5): copies of notice and annexures to be served on all
affected parties .
Respondent may oppose application or bring counter-application.
Ordering of provisional judicial measures
Rule 6/5/g: Court may dismiss applicat ion, if it cannot be property decided on affidavit .
May direct that oral evidence be adduced or party to appear personally on specified issues in
re questions of fact.
Make order necessary to ensure just and expeditious decision refer matter to trial with
appropriate directions as to pleadings or definition of issues or otherwise.
Rule 6/6: court may instead of making an order (unless it is an order in re costs) grant leave to
the applicant to renew application on the same papers supplemented by such further affidavits as the
case may require.
Rule 6/12: in re urgent applications court may dispense with the forms and service provided
for in rules and may dispose of application, as it seems meet.
Rule 6/15: court may on application order to be struck out from any affidavit  any scandalous,
vexatious or irrelevant matter maintaining in force of provisional judicial measures (time limits, and
safeguards to protect legitimate interests of defendant):
Rule 6 (5) (b),c,d,e:- 5 days’ notice to respondent of application to respond by giving notice of intention to
oppose the application;
- 14 days for of notifying notice to oppose deliver answering affidavit;- applicant may within 7 days of receiving answering affidavit (upon service) deliver
replying affidavit .
If respondent intends to raise a question of law s/he must give notice of that intention within
15 days after notice to oppose:
- 4 days after receipt of answering affidavit or after delivering replying affidavit ,
applicant may apply to registrar for allocation of date for hearing of the application/if
applicant doesn’t, respondent may;IP/N/6/NAM/1
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- if no notice to oppose set down for hearing 7 days after notice of motion given to
respondent.
In HC - if material facts are in dispute final order generally sought by way of action;  in MC
hearing of oral evidence in order to resolve factual disputes for final order.
13. Describe provisions governing the length and cost of proceedings.  Provide any available
data on the actual duration of proceedings and their cost.
No response provided.
14. Reply to the above questions in relation to any administrative provisional measures.
No response provided.
Special Requirements Related to Border Measures
15. Indicate for which goods it is possible to apply for the suspension by the customs
authorities of the release into free circulat ion, in particular whether these procedures
are available also in respect of goods which involve infringements of intellectual
property rights other than counterfeit trademark or pirated copyright goods as defined
in the TRIPS Agreement (footnote to Article 51).  Specify, together with relevantcriteria, any imports excluded from the application of such procedures (such as goods
from another member of a customs union, goods in transit or de minimis imports).  Do
the procedures apply to imports of goods put on the market in another country by or
with the consent of the right holder a nd to goods destined for exportation?
Which goods in re application for suspension of release possible
- Prohibited goods: infringing copies of copyright, section 34 read with 123 (1) and (b)
in particular in respect of copyright;
-T r a d e m a r k s ;
- Patents.
Exclusion of goods from customs measures
Copyright:  no exclusion in re imports.
Sec. 40 of customs: subject to a written permission importer may import the following goods
from the common customs area without making an entry of such goods:
Containers temporarily imported;  human remains;  goods which in the opinion of the
Commissioner are of no commercial value;  goods imported under an international carnet; or goods of
a value for duty purposes not exceeding N$500 and on which no duty is payable in terms ofSchedule 1.
Sec. 84 (1) (b) goods for home consumption.
(Sec 15-24 – if goods subject to exceptions listed and falling under “fair dealing” BUT these are acts
done in Namibia)
Trademarks:  No specific provisions.IP/N/6/NAM/1
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Patents:  No specific provisions.
Sec 123 of Customs Act.
16. Provide a description of the main elements of the procedures relating to the suspension
of the release of goods by customs authoritie s, in particular the competent authorities
(Article 51), the requirements for an application (Article 52) and various requirements
related to the duration of suspension (Artic le 55).  How have Articles 53 (security or
equivalent assurance), 56 (indemnification of the importer and of the owner of the
goods) and 57 (right of inspection and information) been implemented?
Copyright:  Section 34 in re 1. Restriction on importation on request by copyright owner none
in 2,3,6.
Patents:  none.Trademarks:  none.Customs has provision re intellectual property rights in re 1-6: sections 14, 93,97,98, 123/1
and /4.
17. Describe provisions governing the length and cost of proceedings.  Provide any available
data on the actual duration of proceedings and their cost.  How long is the validity of
decisions by the competent authorities for the suspension of the release of goods into free
circulation?
The Customs and Excise Act has no specific provision to this effect.
18. Are competent authorities required to act upon  their own initiative and, if so, in what
circumstances?  Are there any special provisions applicable to ex officio  action?
Yes.  Customs and Excise Act 20 of 1998, Section 123.
19. Describe the remedies that the competent authorities have the authority to order and
any criteria regulating their use.
No response.
Criminal Procedures
20. Specify the courts which have jurisdiction over criminal acts of infringement of IPRs.
Same as civil, Magistrates court jurisdiction is N$20 000 or 5 years.
Regional N$100 000 or 20 years.
A case may be dealt with at Magistrate’s court and then referred to regional court for
sentencing.IP/N/6/NAM/1
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21. In respect of which infringements of which intellectual property rights are criminal
procedures and penalties available?
Trademarks
Section 70: false entry in register or making, producing or tendering false copy 200 or 12
months or both.
Section 71: making false statements in order to deceive register or other officer 200 or 12
months or both.
Section 72: falsely representing a trademark as registered. N$100.Patents
Section 81 (same as 70 of trademarks) max. N$1 000 or 12 months or to both, 82 same as 71
or trademarks, same penalties.
Section 83: trafficking of patents by employ ees or officers in patent office N$500 no
imprisonment.
Section 84: improper use of the words “patent office”:  100 or 3 months or to both.Section 85: certain false representations e.g. that product is a patent 1000 or 12 months or
both.
Copyright
Section 33, Sub (1):
- making for sale or hire;
- selling or letting or by way of trade offering or exposing for sale or hire;
- by way of trade exhibits in public;- importing into Namibia for a purpose other than for his or her private or domestic
use;
- distributing for purposes of trade;
- distributing for any other purpose to such an extent that the owner of the copyright is
prejudicially affected,
any article which he or she knows to be an infringing copy of the work.Section 33, Sub (2):
- causing a literary or musical work to be performed in public, knowing that copyright
subsists in the work and that such performance constitutes an infringement of the
copyright;
- causing a broadcast to be rebroadcast or transmitted in a diffusion service, knowing
that copyright subsists in the broadcast and that such rebroadcast or transmission
constitutes an infringement of the copyright;IP/N/6/NAM/1
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- causing programme-carrying signals to be distributed by a distributor for whom they
were not intended, knowing that copyright subsists in the signals and that such
distribution constitutes an infringement of copyright.
22. Which public authorities are responsible fo r initiating criminal proceedings? Are they
required to do this on their own initiati ve and/or in response to complaints?
Section 8 of cpa 51/1977: private prosecution under statutory right person on whom right to
prosecute expressly conferred by law may institute and conduct prosecution in re of those offences.
Police, customs, agencies administering and implementing the relevant legislation (they may
be complainants in criminal proceedings):
- They may initiate criminal proceedings on th eir own or in response to owner of rights
under the laws concerned notifying them of infr ingement/making a complaint (initiating meaning
“laying a charge”) .
23. Do private persons have standing to initiate criminal proceedings and, if so, who?
Right owners and section 7:  anyone with a substantial and peculiar interest in the issue of the
trial arising out of some injury which he or she individually suffered in consequence of the
commission of the offence cpa for all acts.
24. Specify, by category of IPR and type of infringement where necessary, the penalties and
other remedies that may be imposed:
- imprisonment;
- monetary fines;
- seizure, forfeiture and destruction of infringing goods and materials and
implements for their production;
- other.
Copyright, trademarks, and patents:  impose monetary fines and imprisonment;  Seizure,
forfeiture of infringing goods and implements for their production are authorized by the CriminalProcedure Act, 1977 (Act No. 51 of 1977) which applies to all criminal cases instituted under the laws
concerned.
Destruction under Criminal Procedures Act, 1977, under section 31 (1) (b).
Copyright:  section 53 – destruction.
Section 33: copyright infringement, all types – N$12 000 or 3 years or both for first
conviction.
N$ 20 000 or 5 years or both for any subsequent conviction.Section 51 (performers):  same.
Other penalties
Not specified.IP/N/6/NAM/1
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25. Describe provisions governing the length and any cost of proceedings.  Provide any
available data on the actual duration of proceedings and their cost, if any.
Article 12 (1)(b) of the Namibian Constitution requires that judicial proceedings take place
within a reasonable time, failing which the accused shall be released; the duration of criminalproceedings varies greatly.
Factors contributing to delays are, among other things:  a backlog of cases due to a lack of
prosecutors, magistrates, police vehicles to carry out investigations, non-availability of lawyers in
reasonably short time (in light of article 12 (1) (e) adequate time and facilities to prepare and present
defense, including right to legal representation).
No data.
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