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Enforcement of IPRs in Botswana


Enforcement of IPRs
In Botswana, fongkong (generally, called “fakes” otherwise) is linked to the Chinese merchants bringing a negative image to the Chinese businesses and triggering governmental restrictions on fongkong goods and Chinese businesses. However, surprisingly, fongkong goods continue to be sold in the local market, which is the major reason of their continuous exposure to locals.
Luxury clothing, shoes, and accessories are the goods that most often face counterfeiting and piracy in Botswana.
They are as follows:
Trademarks, Patents, Designs, Layout Designs of Integrated Circuits, GIs, Copyright, and TK are the different types of IPRs protected by IPR enforcement in Botswana.
There are no requirements for foreign persons to obtain any special approvals, engage any special agents, or present any special documentation to gain access to national courts, customs officials, or police officials for obtaining enforcement of their copyright in Botswana. Foreign natural and legal persons shall enjoy the right to take action in the Courts of Botswana on the same footing as natural and legal persons, as provided for in the Berne Convention or in any international convention to which Botswana is a party.
Firstly, it is important to have an overall strategy to protect your IP. Secondly, the IP may be protected differently in Botswana than in any other jurisdiction. Thirdly, the rights must be registered and enforced in Botswana under the local laws. Also, It is always advisable to conduct due diligence on potential partners.
A) Government Authorities - Yes
B) Police Officials - Yes
C) Judiciary - Yes
D) Customs - No
A) Injunctions - Yes
B) Monetary Compensation - Yes
C) Raids - Yes
D) Seizures - Yes
E) Destruction - Yes
Other civil remedies include delivery up of any infringing product, article, or product of which the infringing product forms an inseparable part.
A) Responsible Authority - High Court, Supreme Court, Magistrates Court
B) Imprisonment Term – For Trademarks, Patents, Designs, Layout Designs of Integrated Circuits, GIs, and TK: the imprisonment term is not less than 01 year but not more than 03 years. However, where the gravity of the offence is greater, it may extend to a term not exceeding 10 years.
C) Monetary Fine - For Trademarks, Patents, Designs, Layout Designs of Integrated Circuits, GIs, and TK: the monetary fine is not less than P5 000 but not more than P10,000, but where the gravity of an offence is greater, it may extend to a minimum fine of P20,000.00 and a maximum of P5 000 000.00.
There is no formal framework to facilitate ADR methods of seeking and obtaining redressal; however, where the parties mutually agree to resort to such measures, they may do so.
Section 32 of the Act provides that any goods imported into the country that are in contravention of the provisions of the Copyright Act may be placed under an embargo, destroyed, or otherwise disposed of as provided for under section 119 and 120 of the Customs and Excise Duty Act.
Court Proceedings
A major risk lies in the lack of procedures empowering the Customs to act on application through recordation of rights. This means that the rights holder primarily has recourse to court proceedings and administrative action, which is a longer route of enforcement.