Evaluate the extent

to which Namibia
has made strides in
order to fulfil its
Intellectual Property
Rights (IPR)
obligations under
the TRIPS
agreement.
Introduction
This assignment aims Evaluate the extent to which Namibia has made strides in
order to fulfil its Intellectual Property Rights (IPR) obligations under the TRIPS
agreement. In order to do this, the author will define the TRIPS agreement. I will
then critically highlight the obligations created by the TRIPS agreement. Thereafter,
I will evaluate, which, if any, of these obligations have been fulfilled by Namibia.

The TRIPS agreement and the obligations it creates

The Trade-Related Aspects of Intellectual Property Agreement 1 (‘TRIPS’) is a
multilateral agreement administered by the World Trade Organisation (“WTO”) that
came into effect on 1 January 1995. 2 Namibia has been a member of the WTO
since 1 January 1995. The TRIPS agreement has applied to Namibia since then it
came into force on the same date.
The TRIPS Agreement covers the issues of protection of intellectual property in
trade-related areas to a significant degree, and is seen as a comprehensive
framework prescribing standards of intellectual property protection. 3 The TRIPS
Agreement is the first international agreement concerning all types of intellectual
property with several substantive provisions. In short, the TRIPS agreement
introduced intellectual property law into the multilateral trading system for the first
time.
The purpose of the TRIPS Agreement, as stated in its preamble, is:
“to reduce distortions and impediments to international trade… taking into account
the need to promote effective and adequate protection of intellectual property
rights, and to ensure that measures and procedures to enforce intellectual property
rights do not themselves become barriers to legitimate trade.”4
The TRIPS agreement is divided into 7 parts, consisting of 73 articles. I shall deal
with the obligations created by each Part of the agreement separately. This
assignment will only make reference to the parts and or Articles which create
obligations for member-states.
Under Part I, member countries are obliged to enact domestic legislation to give
effect to the provisions of the TRIPS Agreement. In terms of Article 1, Intellectual
property is defined as all categories of intellectual property that are the subject of
1
Agreement on Trade-Related Aspects of Intellectual Property Rights (the "TRIPS Agreement") as
included in Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization of 15
April 1994
2
The Agreement Establishing the World Trade Organization, commonly known as the “Marrakesh
Agreement”, was signed in Marrakesh, Morocco, on April 15, 1994, at the conclusion of the Uruguay
Round of Multilateral Trade Negotiations. The TRIPS agreement was included therein as Annex 1C.
3
4
Preamble, the TRIPS Agreement
Sections 1 through 7 of Part II of the Agreement. 5 Part II of the TRIPS agreement
lists copyright and related rights, trademarks, geographical indications, industrial
designs, patents, layout-designs (topographies) of integrated circuits, and
protection of undisclosed information (trade secrets) as the categories of intellectual
property.
Part I also calls for national treatment of all World Trade Organisation member firms
in the protection of intellectual property rights and for most‐favoured nation status
to firms from all member countries.6 
The TRIPS Agreement instructs member-states to comply with their obligations
concerning intellectual property rights under existing treaties. 7 These treaties are
listed as the Paris Convention for the Protection of Industrial Property, the Berne
Convention for the Protection of Literary and Artistic Works, the Rome Convention
for the Protection of Performers, Producers of Phonograms and Broadcasting
Organizations (Rome Convention) and the Treaty on Intellectual Property in
Respect of Integrated Circuits (IPIC Treaty). 8
Part II of the TRIPS Agreement defines the minimum standards of IPR protection
that member countries must implement to be compliant with the
Agreement.9 Copyrights are to be protected in alignment with the Berne
Convention, and for a minimum of 50 years. 10  Computer programs shall be
protected as literary works under the Berne Convention. Patents shall receive 20
years of protection11, and though plants, animals and biological processes are
exempt, patents must provide protection to plant varieties. Compulsory licensing of
patented products is allowed under specified conditions in which patent protection
may generate high social or economic costs. Under the TRIPS Agreement, original
or new industrial designs must be protected for at least 10 years. 12
Part III outlines the rules of enforcement for IPR protection in member countries. In
terms of Article 41, governments have to ensure that intellectual property rights can

5
Ibid
6
Cardwell, R., Ghazalian, P.L., 2012, The Effects of the TRIPS Agreement on International
Protection of Intellectual Property Rights, The International Trade Journal 26(1):19-36
7
Article 2 of the TRIPS agreement
8
Ibid. The Article, in its footnotes goes on to even further explicitly refer to the treaties in detail as
being: The Paris Convention for the Protection of Industrial Property, notably the Stockholm Act of
this Convention of 14 July 1967 (the "Paris Convention (1967)"), the Berne Convention for the
Protection of Literary and Artistic Works, notably the Paris Act of that Convention of 24 July 1971
(the "Berne Convention (1971)"), the International Convention for the Protection of Performers,
Producers of Phonograms and Broadcasting Organizations adopted at Rome on 26 October 1961
(the "Rome Convention") and the Treaty on Intellectual Property in Respect of Integrated Circuits
adopted at Washington on 26 May 1989 (the "IPIC Treaty" or "Washington Treaty").
9
Cardwell, R., Ghazalian, P.L., (2012:19-36)
10
Article 12 of the TRIPS Agreement
11
Ibid, Article 33.
12
Ibid, Article 26.
be enforced to prevent or deter violations. 13 The procedures must be fair and
equitable, and not unnecessarily complicated or costly. 14

Legislative sources of intellectual property rights in Namibia

Article 16 of the Constitution of the Republic of Namibia, 1990 does not exclude
intellectual property rights, but does not expressly mention them as rights
recognised thereunder either.15
Copyrights and related rights are protected under the Copyright and
Neighboring Rights Protection Act, 1994.16 Copyrights are to be protected for a
minimum of 50 years.17
The Industrial Property Act, 201218 is another statute that regulates industrial
property rights in Namibia. The Patents are available for any inventions, whether
products or processes, in all fields of technology, provided the invention is new,
involves an inventive step and is industrially applicable. 19 Patents shall also receive
20 years of protection.20 Industrial designs are to be protected for at least 15
years.21 Trademarks are also protected for a period of 10 years. 22
The Industrial Property Act provides comprehensive enforcement rules throughout
the Act.23 The Act also provides for the establishment of an Industrial Property
Tribunal which is empowered to hear appeals to proceedings or decisions made by
the Registrar of Industrial Property relating to, inter alia, the grant of a trade mark,
patent, industrial design or utility model.24

Whether the Obligations created by the TRIPS agreement are fulfilled

With the advent of the new Industrial Property Act, 2012, Namibia has come to fulfil
most obligations created by the TRIPS agreement with regards to Trade Marks,
Patents, Utility Models, Industrial Designs. This is because the definitions of these
intellectual property rights and the protection afforded to them under TRIPS is
13
ibid
14
ibid
15
Article 16 (1) states that :
“All persons shall have the right in any part of Namibia to acquire, own and dispose of all forms of
immovable and movable property individually or in association with others and to bequeath their
property to their heirs or legatees: provided that Parliament may by legislation prohibit or regulate as
it deems expedient the right to acquire property by persons who are not Namibian citizens.”
There is no specific reference to intellectual property.
16
No. 6 of 1994
17
Ibid, section 6.
18
No 1 of 2012.
19
Ibid, section 13.
20
Ibid, section 45.
21
Ibid, section 110.
22
Ibid, section 157.
23
See sections 63-75; 123-125;182-186.
24
Ibid, sections 215-229.
replicated under the Industrial Property Act. The Act, in some instances gives better
protection to these rights. The instances in question are such as 15 years’
protection for industrial designs under the Industrial Property Act instead of the 10
years under the TRIPS agreement for same. It shows Namibia has made strides.
Another example is the 10 years’ protection of trademarks under the Industrial
Property Act, whereas TRIPS only offers 7 years protection. This Act provides
comprehensive enforcement rules throughout the Act and the establishment of an
Industrial Property Tribunal which is empowered to hear appeals to proceedings or
decisions made by the Registrar of Industrial Property relating to, inter alia, the
grant of a trade mark, patent, industrial design or utility model. This is consistent
with the obligations imposed by Part III of the TRIPS agreement.
However, with regards to Copyright and Related Rights, there remains much to be
desired. The Copyright and Neighboring Rights Protection Act is outdated and does
not provide adequate compliance with the TRIPS agreement. One such area of
concern is the Computer programs.

Conclusion
This assignment has evaluated the fulfilment of the obligations created by TRIPS
on member states by Namibia. A thorough study was presented. It has concluded,
after a study of all relevant materials that there are still areas in which Namibia has
not fulfilled the said obligations. One such area is the Copyright and Related
Rights.
Reference List

The Constitution of the Republic of Namibia

Copyright and Neighboring Rights Protection Act, 1994, No 6 of 1994

The Industrial Property Act, 2012, No 1 of 2012

Agreement on Trade-Related Aspects of Intellectual Property Rights (the "TRIPS

Agreement") as included in Annex 1C of the Marrakesh Agreement Establishing the
World Trade Organization of 15 April 1994

The Agreement Establishing the World Trade Organization, commonly known as

the “Marrakesh Agreement”, was signed in Marrakesh, Morocco, on April 15, 1994,
at the conclusion of the Uruguay Round of Multilateral Trade Negotiations

The Paris Convention for the Protection of Industrial Property (1967)