Several general principles are important for effective management of intellectual property (IP) rights in Botswana. First, it is important to have an overall strategy to protect your IP. Second, IP may be protected differently in Botswana than in the United States. Third, rights must be registered and enforced in Botswana under local laws. For example, U.S. trademark and patent registrations will not protect you in Botswana. There is no such thing as an “international copyright” that will automatically protect an author’s writing throughout the entire world. Protection against unauthorized use in a particular country depends on the national laws of that country. However, most countries do offer copyright protection to foreign works in accordance with international agreements. The local IP authority in Botswana is the Companies and Intellectual Property Authority, commonly referred to as CIPA, an organization that works closely with the U.S. government and the World Intellectual Property Organization (WIPO). Botswana Intellectual Property Policy (BIPP) was approved in April 22.
Granting patents registrations are generally based on a first-to-file. Similarly, registering trademarks is based on a first-to-file, so you should consider how to obtain patent and trademark protection before introducing your products or services to the Botswana market. It is vital that companies understand that intellectual property is primarily a private right, and that the U.S. government cannot enforce rights for private individuals in Botswana. It is the responsibility of the rightsholders to register, protect, and enforce their rights where relevant, retaining their own counsel and advisors. Companies may wish to seek advice from local attorneys or IP consultants who are experts in Botswana law. A list of local lawyers is available on the U.S. Embassy Gaborone website (https://bw.usembassy.gov/u-s-citizen-services/).
While the U.S. government stands ready to assist, there is little it can do if the rights holders have not taken the fundamental steps necessary to secure and enforce their IP in a timely fashion. Moreover, in many countries, rightsholders who delay enforcing their rights on a mistaken belief that the U.S. government can provide a political resolution to a legal problem may find that their rights have been eroded or abrogated due to legal doctrines such as statutes of limitations, laches, estoppel, or unreasonable delay in prosecuting a lawsuit. In no instance should U.S. government advice be seen as a substitute for the responsibility of a rights holder to promptly pursue its case.
It is always advisable to conduct due diligence on potential partners. A good partner is an important ally in protecting IP rights. Consider carefully, however, whether to permit your partner to register your IP rights on your behalf. Doing so may create a risk that your partner will list itself as the IP owner and fail to transfer the rights should the partnership end. Keep an eye on your cost structure and reduce the margins (and the incentive) of would-be bad actors. Projects and sales in Botswana require constant attention. Work with legal counsel familiar with Botswana laws to create a solid contract that includes non-compete clauses, and confidentiality/non-disclosure provisions.
It is also recommended that small and medium-size companies (SMEs) understand the importance of working together with trade associations and organizations to support efforts to protect IP and stop counterfeiting. There are a number of these organizations in both Botswana and the United States, including:
- The U.S. Chamber of Commerce
- National Association of Manufacturers (NAM)
- International Intellectual Property Alliance (IIPA)
- International Trademark Association (INTA)
- Coalition Against Counterfeiting and Piracy (CACP)
- International Anticounterfeiting Coalition (IACC)
- Pharmaceutical Research and Manufacturers of America (PhRMA)
- Biotechnology Innovation Organization (BIO)
In any foreign market companies should consider several general principles for effective protection of their intellectual property. For additional information, visit the Stopfakes.gov website or contact ITA’s Office of Intellectual Property Rights Director, Stevan Mitchell at Stevan.Mitchell@trade.gov.
Read further on IP in the Botswana Investment Climate Statement ( State’s ICS).