Republic of Namibia 23 Annotated Statutes
Business and Intellectual Property Authority Act 8 of 2016
Business and Intellectual Property Authority
Act 8 of 2016
(GG 6105)
brought into force with effect from 16 January 2017 by GN 293/2016 (GG 6197)
ACT
To establish the Business and Intellectual Property Authority; to provide for its powers and functions; to provide for the Board of BIPA and its powers and functions; to consolidate certain offices; to amend certain laws; and to provide for incidental matters.
(Signed by the President on 12 August 2016)
ARRANGEMENT OF SECTIONS
PART 1
PRELIMINARY
1. Definitions
2. Objects of Act
PART 2
BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY
3. Establishment of BIPA
4. Establishment of Registration Office
5. Functions and powers of BIPA
6. Policy directives by Minister
7. Board of BIPA
8. Constitution of Board
9. Disqualifications for appointment as member
10. Term of office of members
11. Vacation of office by members
12. Meetings of Board
13. Committees of Board
14. Rules by Board
15. Allowances payable to members
PART 3
PERSONNEL PROVISIONS
16. Chief Executive Officer
17. Staff members of BIPA
PART 4
FINANCIAL PROVISIONS
18. Funds of BIPA
19. Bank accounts of BIPA
20. Financial year and budget
21. Auditing
22. Annual report
PART 5
GENERAL PROVISIONS
23. Disclosure of interests by members and conduct of members and staff members of BIPA
24. Reports by Registrar
25. Prohibition of disclosure of confidential information
26. Claim of confidentiality
27. Limitation of liability
28. Delegation of powers and assignment of functions
29. Offences
30. Regulations
31. Transitional and savings provisions
32. Amendment of laws
33. Short title and commencement
SCHEDULE 1: Applicable Legislation
SCHEDULE 2: Amendment of Laws
BE IT ENACTED as passed by the Parliament, and assented to by the President, of the Republic of Namibia as follows:
PART 1
PRELIMINARY
Definitions
1. In this Act, unless the context otherwise indicates -
“applicable legislation” means a legislation listed in Schedule 1;
“BIPA” means the Business and Intellectual Property Authority established by section 3;
“Board” means the Board of BIPA constituted in terms of section 8;
“business” means a company and corporation;
“Chief Executive Officer” means the Chief Executive Officer of BIPA appointed under section 16;
“Close Corporations Act” means the Close Corporations Act, 1988 (Act No. 26 of 1988);
“committee” means a committee of the Board established under section 13;
“company” means a company as defined in section 1 of the Companies Act;
“Companies Act” means the Companies Act, 2004 (Act No. 28 of 2004);
“corporation” means a corporation as defined in section 1 of the Close Corporations Act;
“copyright” means copyright as defined in section 1 of the Copyright and Neighbouring Rights Protection Act, 1994 (Act No. 6 of 1994);
“intellectual property” means the industrial property and copyright;
“Industrial Property Act” means the Industrial Property Act, 2012 (Act No. 1 of 2012);
“industrial property” means the industrial property as defined in section 1 of the Industrial Property Act;
“member” means a person appointed as a member of the Board under section 8;
“Minister” means the Minister responsible for trade;
“prescribed” means prescribed by regulation;
“Public Enterprises Governance Act” means the Public Enterprises Governance Act, 2006 (Act No. 2 of 2006);
“Registrar” means the Registrar of business and industrial property who is the Chief Executive Officer;
“Registration Office” means the Registration Office established in terms of section 4;
“regulation” means a regulation made under section 30;
“regulatory authority” means an entity established in terms of legislation, responsible for regulating an industry or sector of an industry, and includes a ministry, office and agency;
“rule” means a rule made under section 14;
“staff member” means staff member of BIPA appointed under section 17; and
“this Act”, includes the regulations.
[The comma after “this Act” is superfluous.]
Objects of Act
2. The objects of this Act are to -
(a) facilitate economic growth and development to raise income and promote investment and create employment;
(b) enhance the efficient protection of the business and intellectual property in Namibia;
(c) facilitate and promote the efficient and effective registration of business and industrial property in Namibia;
(d) promote the conduct and use of business and intellectual property in Namibia;
(e) facilitate, streamline, simplify and harmonise the business and industrial property procedures, registrations, filings and searches to expedite economic growth and development; and
(f) enhance the efficient exchange and distribution of information.
PART 2
BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY
Establishment of BIPA
3. (1) There is established a juristic person to be known as the Business and Intellectual Property Authority.
(2) BIPA -
(a) is the focal point for the registration of business and industrial property, and is responsible for the administration and protection of business and intellectual property; and
(b) must exercise and perform its powers and functions in an efficient and effective manner.
Establishment of Registration Office
4. The Board must, within BIPA, establish a Registration Office where business and industrial property are registered in accordance with this Act and the applicable legislation.
Functions and powers of BIPA
5. (1) The functions of BIPA are to -
(a) regulate and administer the registration of business and industrial property under the applicable legislation;
(b) consolidate various offices involved in the registration and administration of business and intellectual property in a manner provided for in this Act;
(c) register information, documents and data required to be lodged with, and maintained by, BIPA under the applicable legislation and to be responsible for the examination, safety and orderly custody of the information, documents and data;
(d) implement, promote and continuously enhance, advance electronic business and intellectual property information and transaction systems;
(e) maintain accurate, current and relevant information concerning business and intellectual property;
(f) promote, expedite and simplify the flow of information between BIPA and the business community, users of business and intellectual property, general public, regulatory authorities and institutions of the State;
(g) collect such fees and rates under this Act or the applicable legislation;
(h) promote education and awareness of laws relating to business and intellectual property and related matters;
(i) advise the Minister, public sector and private sector on matters pertaining to business and intellectual property falling within the scope of BIPA;
(j) recommend to the Minister or any other minister or institutions of the State on matters relating to the amendment or making of any law in order to promote the efficient operation of business and intellectual property;
(k) perform any functions imposed on it by or under this Act, applicable legislation or necessary to achieve the objects of this Act and monitor compliance with this Act and the applicable legislation; and
(l) observe and adhere to the principles of good corporate governance and to oversee the implementation of such principles of good corporate governance by BIPA.
(2) BIPA may -
(a) organise outreach and awareness creation programmes to inform, educate and sensitise the public on matters relating to business and intellectual property;
(b) having regard to the regional and international developments in the field of business and intellectual property, interact with the regional and international bodies having similar objects;
(c) consult with a person, organisation or institution with regard to a matter relating to business and intellectual property and may -
(i) liaise with a regulatory authority on matters of common interest and exchange information with, and receive information from, any such regulatory authority pertaining to matters of common interest or a specific complaint or investigation; or
(ii) advise or receive advice from a regulatory authority; or
(d) liaise with, and obtain membership of, international and regional business and intellectual property bodies having similar objects to that of BIPA and promote compliance with international or regional agreed instrument of which Namibia is a member.
(3) In order to promote the enforcement of, and compliance with, this Act and the applicable legislation, BIPA may -
(a) if requested by the parties to a dispute on any matter relating to this Act or the applicable legislation, facilitate voluntary resolution of disputes between the parties without intervening or adjudicating the disputes;
(b) receive or initiate complaints concerning alleged contraventions or non-compliances with this Act or the applicable legislation, evaluate such complaints and investigate such complaints;
(c) refer alleged offences to the relevant prosecuting or regulatory authority; or
(d) do any other thing necessary to perform its functions under this Act or the applicable legislation.
Policy directives by Minister
6. For the purposes of promoting the objects of this Act, the Minister may issue general or specific policy directives to BIPA not inconsistent with the provisions of this Act or applicable legislation.
Board of BIPA
7. The Minister must constitute the Board of BIPA in terms of section 8 -
(a) to govern, supervise and control the affairs of BIPA;
(b) to exercise the powers conferred on BIPA or the Board by or under this Act or the applicable legislation; and
(c) to perform such functions imposed on the Board by or under this Act or the applicable legislation.
Constitution of Board
8. (1) Unless a different number is determined in accordance with section 14(1)(a) of the Public Enterprise Governance Act, the Board consists of seven members appointed by the Minister of whom -
(a) three persons are selected by the Minister;
(b) four persons are from the persons who apply for appointment as members or are nominated in the manner contemplated in subsection (2),
who have appropriate and relevant expertise and experience in one or more of the following fields, namely, commerce, business, law, finance, economics and intellectual property.
(2) For the purposes of making an application or being nominated for appointment in terms of subsection (1)(b) -
(a) the Minister must in at least two newspapers circulated widely through Namibia invite for applications or nominations to be submitted to the Minister in writing within the period specified in the invitation; and
(b) if no nomination is submitted as contemplated in paragraph (a) within the period specified in the invitation referred to in that paragraph, the Minister, subject to this section, may appoint a suitable person as member of the Board.
(3) A person appointed as a member of the Board under paragraph (b) of subsection (2) is regarded as having been properly nominated for appointment as a member of the Board under paragraph (b) of subsection (1).
(4) The Minister must appoint a chairperson and a deputy chairperson of the Board from among the members of the Board.
(5) The Chief Executive Officer is an ex officio member with no voting right.
(6) The Minister must, as soon as possible after appointing the members of the Board in terms of subsection (1), make known in the Gazette -
(a) the name of every person appointed as a member of the Board;
(b) the period for which the appointment is made; and
(c) the date from which the appointment takes effect.
Disqualifications for appointment as member
9. A person is disqualified from appointment as a member, if the person -
(a) is not a Namibian citizen or permanent resident in Namibia;
(b) is an unrehabilitated insolvent;
(c) during a period of 10 years preceding the date of the proposed appointment as a member, has been convicted of any offence and sentenced to a period of imprisonment without the option of a fine;
(d) has been removed from an office of trust as a result of improper conduct;
(e) has been declared mentally ill by a competent court under any law; or
(f) is a member of National Assembly, National Council, local authority council or regional council.
Term of office of members
10. A member holds office for a term of three years and is eligible for re-appointment at the expiration of that term, except for the Chief Executive Officer who is an ex officio member.
Vacation of office by members
11. (1) A member vacates office, if he or she -
(a) becomes subject to any of the disqualifications referred to in section 9;
(b) resigns from his or her office, after giving the Minister 30 days written notice of his or her intention to resign;
(c) has been absent from three consecutive meetings of the Board without leave of the chairperson of the Board; or
(d) is removed from office under subsection (2).
(2) The Minister, by notice in writing to a member, may remove a member from office before the expiry of his or her term, if the Minister is satisfied, after giving such member a reasonable opportunity to be heard, that the member -
(a) is physically or mentally unfit or unable to effectively perform his or her functions as a member;
(b) neglects his or her functions as a member;
(c) has contrary to section 25 divulged information which has been entrusted to the member; or
(d) acts in a manner that prejudices or is in conflict with the functions of the Board or BIPA.
(3) If a member dies or vacates office before the expiration of his or her term of office, the Minister must appoint a person to fill the vacancy for the remainder of such term in accordance with section 8.
Meetings of Board
12. (1) The first meeting of the Board takes place at a time and place determined by the Minister, and the Board must hold at least four meetings a year at a time and place determined by the chairperson of the Board.
(2) The chairperson of the Board must convene a special meeting of the Board, to be held within 14 days after the date of receipt of a written request -
(a) by the Minister; or
(b) signed by at least three of the members,
and the request must clearly state the purpose for which the meeting is to be convened, the place and the agenda of the meeting and such other matters as may be so requested by the Minister or such members.
(3) The Minister may in writing request any matter pertaining to the functions of BIPA to be placed on the agenda of a meeting of the Board for consideration.
(4) At any meeting of the Board, the majority of all members form a quorum.
(5) If a quorum cannot be obtained at a meeting of the Board, the meeting is adjourned to a time and date determined by the chairperson of the Board.