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Intellectual Property
What is Intellectual Property (IP)?

Intellectual Property refers to the creations of the mind or a body of law whereby the government awards exclusive economic rights to artists and inventors in their creations, in order to stimulate technically and socially valuable and innovative contributions to society. It includes such things as inventions, literary and artistic works, symbols, images, names, and designs. IP creations can be sold, bought, hired or rented like all other mainstream property.

Intellectual Property is divided into two categories:

·         Industrial Property -  relates to Trademarks, Patents and industrial designs

·         Copyright

Trademarks

A Trade/Service mark is a word, symbol, logo or combination of both, which distinguishes goods/services of one party from those of the other. A trademark’s main use is to be an identifier of source. Trade Mark Registration Procedure File application form (Form 7) with IP office at a fee of P120.00 (individuals and SMEs) and P240.00 for body corporates, for applications one class of goods/ services (P20 and P40 for each additional class).

Foreign Applicants to submit through local attorneys, hence should file a Power of Attorney IP office conducts formal and substantive examination If accepted, the application is published in the journal for opposition (3 months). If unopposed the mark is registered and Certificate of Registration issued after payment of Registration Fees of P90.00 (individuals and SMEs) and P180.00 for body corporate,. The mark will then be renewed every 10 years from the date of filing (Renewal fees equal to application fees payable).

Patents

A patent is an exclusive right granted by the State for the protection for an invention for a limited period of time. (In Botswana protection is 20 years from the date of filing of the application) It gives its owner the exclusive right to prevent or stop others from making, using, offering for sale, selling or importing a product or a process, based on the patented invention, without the owner’s prior permission.

To be patentable an invention should be new, involve an inventive step and be industrially applicable. Patent Grant Procedure File application form with IP office at a fee of P100 for individuals and P200 for bodies corporate. (Foreign Applicants are required to submit through local agent) IP office conducts formal examination and transmits the application to ARIPO (African Regional Intellectual Property Organisation) for substantive examination ROC receives examination report from ARIPO Patent granted and certificate issued (If application meets Patentability standard) Patent is published in the journal Maintenance fees paid annually from the filing date or the patent lapses

Utility Models - Sometimes called ‘petty patents’ are innovations and provided for under patent procedure.

Industrial Designs

Refers to the ornamental/ aesthetic appearance of an article or a product. To be registered, the design must not be similar to the existing designs (must be new and original) Must have an individual character which distinguishes it from prior designs

Industrial Design Registration Procedure - Submit application form to IP office for a fee of P30 for individuals and P60 for bodies corporate. (Foreign Applicants are required to submit through local agent) Procedure same as for trademarks.

National Enquiry Point for Trade Related Aspects of Intellectual Property Rights (TRIPS)

The office of the Registrar of Companies also houses the National Enquiry Point (NEP) for Trade Related Aspects of Intellectual Property Rights (TRIPS), a Joint Integrated Technical Assistance Program (JITAP) project mobilising the expertise and support of the World Trade Organization (WTO), the United Nations Conference on Trade and Development (UNCTAD) and the International Trade Centre (ITC) to help African country partners benefit from the new Multilateral Trading System. JITAP is the first program that the three organizations have established to deliver jointly a broad range of selected technical assistance inputs to a number of countries simultaneously, focusing mainly on capacity building.

The National Enquiry Point (NEP) for TRIPS was established at Registrar of Companies on September 21, 2006. It was created to be a physical location opened to government officials, business representatives, university professors and students, where these entities can obtain trade-related information resources with specific emphasis on trade-related aspects of intellectual property rights (TRIPS) on various media and the country's commitments relating to multilateral trade negotiations on TRIPS from the NEP.

Copyright Administration

The Copyright and Neighbouring Rights Act CAP 68:02 was passed with the objective to revise and update the law governing copyright in order to encourage the development of creative artistic endeavours in the country. This is done by providing copyright holders with a level of protection over their creations that is internationally comparable and recognizable. The Act is in general compliant with the World Trade Organisation’s (WTO) Trade Related Aspect of Intellectual Property Rights (TRIPS) Agreement, the Berne Convention, and the World Intellectual Property Organisation (WIPO) Internet Treaties, commonly referred to as the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT).

Definition of Copyright

The Copyright and Neighbouring Rights Act CAP 68:02, defines copyright in relation to work as an exclusive right, by virtue and subject to the provisions of the Act, to do, and authorize other persons to do, certain Acts in relation to that work in Botswana and in any other country to which the relevant provisions of the Act extends.

Neighbouring Rights (Section 23) are the rights of those who assist right holders to communicate their works to the public. Such rights include the rights of performers in their performances, the rights of producers of sound recordings in their sound recordings and the rights of broadcasting organizations in their radio and television programs.

Types of Works Protected

The Copyright and Neighbouring Rights Act and its amendments recognize protected works as literary or artistic works which are original intellectual creations:

  • Literary and artistic works include the following- books, pamphlets, articles, computer programmes and other writings.
  • Speeches, lecturers, addresses, sermons and other oral works.
  • Dramatic, dramatic musical works, pantomimes, choreographic works and other works created for stage productions
  • Stage productions, musical works audiovisual works, works of visual art’ photography and others.
  • Derivative works such as translations, adaptations, arrangements and other transformations or modifications of works
  • Collection of works, collection of mere data (databases) whether in machine readable or other form and collections of expression of folklore.
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