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ASSIGNMENT COVER
2023 ACADEMIC YEAR
Student Name Panderee Unotjari Katambo
Student number 219381102
Email Address 219381102@students.unam.na
Cell/Tel no 0812080652
Campus Windhoek Campus

Course/Module Name Course/Module

Code
Law of Intellectual Property PIP3871

Assignment no
(e.g. 1, 2 or 3, etc.).
1
Contents

Introduction ............................................................................................................................................ 3
Trademarks and copyrights..................................................................................................................... 4
Article 51 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)............ 5
Namibian legal framework...................................................................................................................... 6
The Industrial Property Act No. 1 of 2012 .......................................................................................... 6
Conclusion ............................................................................................................................................... 7
Bibliography ............................................................................................................................................ 8

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Introduction

The term “property” implies exclusive ownership, but the owner(s) may choose to sell
or lease their intellectual property.1 Owners are given certain exclusive rights referred
to as intellectual property rights (IPR) to the discoveries, inventions, words, phrases,
symbols, and designs they produce under the provisions of intellectual property law. 2
The main piece of national legislation, defines a trademark as, in addition to a
certification or a collective trademark, a mark that is used or proposed to be used in
connection with goods or services in order to distinguish them from similar goods or
services connected in the course of trade with any other person.3 While copyright is
defined as a term or mark that identifies the manufacturer or seller of products or
services on product packaging or in connection with services whose promotion and
protection is stipulated under the Copyright and Neighboring Rights Protection Act,
No.6 of 1994.4

Counterfeiting is any infringement of a trade mark thus, counterfeit goods are those
that are produced or sold under another person's trademark without the owner's
consent and are typically of lesser quality.5 Traders of counterfeit goods can infringe
the brand owner's trademark, patent, or copyright which is a criminal offense
enforceable by law.6 Currently, in Namibia, the municipal legislation (such as the
Constitution, respective acts and policies) provides the most direct form of protection
for intellectual property, such as patents, industrial designs, trademarks, and trade
names, in addition to legal instruments such as the regional North American Free
Trade Agreement, the Berne Convention, and the Agreement on the Trade-Related
Aspects of Intellectual Property Rights (the TRIPS Agreement).7 However as things

1
Shakela, W. 2021. Law of Intellectual Property. Windhoek: Centre for Open, Distance and eLearning, p8.
2
Shakela (2021:8).
3
Industrial Property Act No.1 of 2012
4
Shakela (2021:35).
5
Du Plessis, E, Kotze, G, Brown, S et al. 2012. Adams & Adams Practical Guide to Intellectual Property in Africa.
Cape Town: Pretoria University Law Press, p21.
6
Du Plessis et al (2012:21).
7
Amoo, S & Harring, S. 2010. Intellectual property under the Namibian Constitution. Available at
https://www.kas.de/upload/auslandshomepages/namibia/constitution_2010/amoo_harring.pdf; last accessed
on 26 March 2023.

3
stand, indigenous intellectual property rights are not specifically protected by Namibian
law.8

Trademarks and copyrights

Trademarks are significant because they serve as a way to market, sell, and
differentiate specific goods and services from other goods and services.9 They also
serve as a guarantee of quality and show that all the goods and services that wear the
mark come from the same commercial source.10 According to section 29(2), an indirect
infringement of a copyright occurs when someone imports something into Namibia
without the owner's permission for a use other than personal and domestic and instead
sells, rents, or distributes it in Namibia for any other reason where the owner of the
copyright in question is adversely affected.11 There are both civil and criminal actions
available for the infringement of trademarks and copyrights and applications should
be made within a period of three (3) years since the infringement.12 Injunctions and
financial compensation may be awarded on a civil basis and a temporary injunction
might be sought as preliminary relief.13 Additionally, infringing goods can be
confiscated and demolished by custom’s authorities who are in charge of upholding
IPR regulations, such as those pertaining to copyrights and trademarks.14 As they have
the power to confiscate and suspend the sale of products that violate IPR, including
pirated and counterfeit goods.15

Furthermore, Article 32 specifies the burden of proof and anyone who breaches
Section 33 of the Copyright Act is guilty of a crime and may be sentenced to up to
N$12,000 (for a first offense) or three years in prison, or up to N$20,000 in fines or up
to five years in prison (for subsequent offenses).16 Article 34 is the most important
provision for restricting the import of counterfeit goods because it states that if the

8
Amoo (2010: 6).
9
Shakela (2021:23).
10
Shakela (2021:23).
11
Copyright and Neighboring Rights Protection Act, No.6 of 1994.
12
Du Plessis et al (2012:85).
13
Du Plessis et al (2012:85).
14
Agreement on Trade-Related Aspects of Intellectual Property Rights.
15
Ibid.
16
No.6 of 1994.

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copyright owner in a published work notifies the Commissioner of Customs and Excise
in writing that they are the copyright owner in that work, the agent must treat the item
as contraband for the term of the notice.17 Copies of works covered by sections that
expire prior to the copyright period are regarded as pirated goods.18

Article 51 of the Agreement on Trade-Related Aspects of

Intellectual Property Rights (TRIPS)

Countries should implement policies that allow right holders to submit written
applications to administrative or judicial authorities that are competent to suspend the
free distribution of products with stolen intellectual property or counterfeit trademarks
in order to comply with Article 51.19 These processes should adhere to the guidelines
outlined in Article 51, which include conditions like:20

a) The application must be submitted in writing and contain enough proof to

persuade the relevant authorities that there is a good basis to believe the goods
in question violate intellectual property rights.
b) The right holder must provide the competent authorities with security or
equivalent assurance sufficient to protect the defendant and the competent
authorities from any harm that may result from the suspension of the release of
the goods.
c) The competent authorities must have the authority to suspend the release of
the goods into free circulation for a period of time that is long enough to allow
the right holder to pursue legal action.

In addition to the above, Article 51 permits nations to set up corresponding procedures

for the customs authorities to prohibit the release of illegal commodities intended for
export from their borders.21 The particular steps Namibia takes to comply with Article
51 may rely on its domestic laws and policies as well as its international commitments

17
Customs and Exercise Act No.20 of 1998 Section 2(9).
18
Customs and Exercise Act Section 2(9)(iv).
19
Agreement on Trade-Related Aspects of Intellectual Property Rights.
20
Ibid.
21
Ibid.

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and duties.22 Governments are free to implement these procedures in a variety of
ways.23 To sum up, in accordance with their obligations under TRIPS and national law,
Namibian customs authorities have the authority to suspend the importation of items
suspected of violating copyright and trademark infringement.

Namibian legal framework

When reading article 16 of the Namibian constitution, which stipulates that “All persons
shall have the right in any part of Namibia to acquire, own, and dispose of immovable
or movable property”, one could come to the unfavorable conclusion which is not
necessarily incorrect that this provision exclusively protects the rights of those who are
Namibian citizens, residents, or who are merely present in the nation at the time of
ownership.24 Thus, Article 144 is essential for both the recognition of specific types of
intellectual property and the security of the holders of those rights both inside and
outside of Namibia.25 Subsequently, any agreements that our state has ratified or
acceded to, as well as fundamental principles of international law and accords that
Namibia is bound to abide by as a result of its constitution, are enforceable against
our state.

The Industrial Property Act No. 1 of 2012

The provisions of this Act are intended to ensure the administration and protection of
utility model certificates and patents, as well as the registration, enforcement, and
protection of trade names and other collective designations. The owner of a Namibian
patent has the right to prevent anyone from using the patent innovation without his or
her permission26 as well as the authority to prohibit anybody from paying or
encouraging third parties to do actions that would violate the patent.27 In order for a

22
Ibid.
23
Ibid.
24
Namibian Constitution.
25
Ibid. Article 144.
26
Industrial Property Act, Section 41.
27
Industrial Property Act, Section 41(1).

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trademark to be given legal protection it must be distinctive and registered.28 When a
trademark is violated, the owner may initiate legal action to seek redress, which may
include monetary damages, a restraining order, an order for the infringing mark to be
removed, the delivery of the infringing good, or royalties related to the infringing
goods.29 It is illegal to import counterfeit goods into Namibia due to copyright violations
and for societal protection.30 The Business Intellectual Property Office (BIPA), the
organization responsible for managing industrial property, has established an
Industrial Property Court that is focused on resolving disputes involving intellectual
property31 and whose primary objective is to enhance the intellectual property
ecosystem by ensuring that intellectual property is protected and enforced in a manner
that is effective and efficient. The Namibia Revenue Agency (NamRa), is afforded a
broad range of responsibilities, including, among others, “protecting Namibian borders
from unlawful importation and exportation of products.”32

Conclusion

In summary, Namibia complies with Article 51 of TRIPS to a great extend in that it

recognizes the illegality of copyright violations and has enacted legislation for societal
protection. The requirements and procedures are explicitly stated in statutes and
administrative bodies together with a tribunal court has been appointed to enforce
these laws on intellectual property rights.

28
Industrial Property Act, Section 134.
29
Industrial Property Act, Section 182.
30
Namibia Revenue Agency Act, No.12 of 2017
31
Industrial Property Act, Section 1.
32
Namibia Revenue Agency Act, No.12 of 2017. Section 3(e).

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 Bibliography

Books

• Du Plessis, E, Kotze, G, Brown, S et al. 2012. Adams & Adams Practical Guide
to Intellectual Property in Africa. Cape Town: Pretoria University Law Press.
• Shakela, W. 2021. Law of Intellectual Property. Windhoek: Centre for Open,
Distance and eLearning.
Internet sources

• Amoo, S & Harring, S. 2010. Intellectual property under the Namibian

Constitution. Available at
https://www.kas.de/upload/auslandshomepages/namibia/constitution_2010/a
moo_harring.pdf; last accessed on 26 March 2023.
Statutes

• Agreement on Trade-Related Aspects of Intellectual Property Rights.

• Copyright and Neighboring Rights Protection Act, No.6 of 1994.
• Customs and Exercise Act No.20 of 1998
• Namibian Constitution
• Namibia Revenue Agency Act, No.12 of 2017.

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