Geographical Indication (GI) options for Ethiopian Coffee and Ghanaian Cocoa

Perspectives on Intellectual Property from Botswana’s Publicly Funded Researchers
applications in every country where protection is sought (such as the ARIPO
Harare Protocol and the Madrid Protocol). International treaties have influenced
Botswana’s statutory IP protection framework. For example, Botswana’s Industrial
Property Act (IPA), which governs patents and trademarks, provides internationally
recognised standards of protection for both foreign and domestic IP.
IP law in Botswana is regulated by a combination of common law and statute.
Although applicable IP law is mainly statutory, there are many aspects of it – such
as actions for unlawful competition – which are governed by the common law.
For instance, under the common law, an Aquilian action (actio legis Aquiliae) can
be instituted for the recovery of compensation for patrimonial loss caused by the
unlawful conduct of another through acts such as breach of confidence, passing
off and injurious falsehood. Botswana has grappled with the challenges of
enacting laws that reflect the country’s hybrid Roman-Dutch and common law
legal heritage. In modernising its laws to keep pace with current developments
to attract and retain foreign investors, Botswana has also incorporated many of
the principles from international treaties into its domestic IP laws. Some of these
domestic laws are:
● Copyright and Neighbouring Rights Act 8 of 2000;
● Industrial Property Act 14 of 1996 (replaced in 2010);
● Industrial Property Regulations, Statutory Instrument 78 of 1997; and
● Industrial Property Act 8 of 2010.
Prior to 1996, protection of industrial property rights (patents, trademarks
and industrial designs) in Botswana was primarily via extension of protections
granted in the UK and South Africa. 1 Botswana enacted the IPA, its first comprehensive
legislation on the matter, in 1996. The IPA was restructured in the new
IPA of 2010, and amendments came into force on 31 August 2012, by virtue of
Statutory Instrument 69 of 2012. Unlike its previous incarnation, the 2010 IPA
incorporates separate registers for traditional knowledge (TK) and geographical
indications (GIs). Broadly, the IPA deals with the protection of patents, trademarks,
utility models and industrial designs. The IPA also aims to encourage the
diversification of industry, to expand the manufacturing base, to encourage small,
micro- and medium-sized enterprises (SMMEs) and to improve overall economic
growth. The 2010 IPA is conspicuously silent about IP emanating from publicly
funded research and development, including its dissemination, utilisation, management
and commercialisation. A new Act or amendments would be required to
1 For further discussion of this background, see Department of Research, Science and
Technology (DRST) (2006, pp. 7–8).
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