The main intellectual property laws in Ghana are the Copyright Act, 2005 (Act 690); the Patents Act, 2003 (Act 657); the Trademarks Act, 2004 (Act 664); the Industrial Designs Act, 2003 (Act 660); and the Protection Against Unfair Competition Act, 2000 (Act 589).
The Government of Ghana launched a National Intellectual Property Policy and Strategy in January 2016, which aimed to strengthen the legal framework for protection, administration, and enforcement of IPR and promote innovation and awareness, although progress on implementation stalled. Enforcement remains weak, and piracy of intellectual property continues. Although precise statistics are not available for many sectors, counterfeit computer software is regularly available at street markets, and counterfeit pharmaceuticals have found their way into public hospitals. Counterfeit products have also been discovered in such disparate sectors as industrial epoxy, cosmetics, drinking spirits, and household cleaning products. Based on cases where it has been possible to trace the origin of counterfeit goods, most have been found to have been produced outside the region, usually in Asia. IPR holders have access to local courts to address IPR concerns. However, the few trademark, patent, and copyright infringement cases that U.S. companies have filed in Ghana have reportedly moved through the legal system slowly.
Several general principles are important for effective management of IP rights in Ghana. First, it is important to have an overall strategy to protect your IP. Second, IP may be protected differently in Ghana than in the United States. Third, rights must be registered and enforced in Ghana under local laws. Your U.S. trademark and patent registrations will not protect you in Ghana. Protection against unauthorized use in a particular country depends, basically, on the national laws of that country.
Granting patent registrations are generally based on a first-to-file or first-to-invent, depending on the country. Similarly, registering trademarks is based on a first-to-file or first-to-use, depending on the country, so you should consider how to obtain patent and trademark protection before introducing your products or services to the Ghana 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 Ghana. It is the responsibility of the rights’ holders 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 Ghana law. See CS Ghana’s Business Services Providers’ list for information about local law firms.
While the U.S. Government stands ready to assist, there is little it can do if the rights holders have not taken steps necessary to securing and enforcing their IP in a timely fashion. Moreover, in many countries, rights holders who delay enforcing their rights on the 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 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 Ghana require constant attention. Work with legal counsel familiar with Ghana’s 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 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, both in Ghana and in the United States. These include:
- The U.S. Chamber of Commerce and the American Chamber of Commerce in Ghana
- National Association of Manufacturers (NAM)
- International Intellectual Property Alliance (IIPA)
- International Trademark Association (INTA)
- The Coalition Against Counterfeiting and Piracy
- International Anti-Counterfeiting Coalition (IACC)
- Pharmaceutical Research and Manufacturers of America (PhRMA)
- Biotechnology Industry Organization (BIO)
In any foreign market, companies should consider several general principles for effective protection of their intellectual property. For background, link to our article on Protecting Intellectual Property and Stopfakes.gov for more resources. For more information, contact Intellectual Property Attaché for Sub Saharan Africa Katherine Hiner at Katherine.Hiner@trade.gov or ITA’s Office of Standards and Intellectual Property Rights (OSIP) Director, Stevan Mitchell at Stevan.Mitchell@trade.gov.
To access Ghana’s Investment Climate Statement, which includes information on the protection and enforcement of intellectual property rights, visit the U.S. Department of State Investment Climate Statement website.