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Mvuto IPL Assignment 2020

Intellectual Property Law (Zimbabwe Ezekiel Guti University)

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ZIMBABWE EZEKIEL GUTI UNIVERSITY

FACULTY OF LAW

BACHELLOR OF LAWS (HONOURS) DEGREE

STUDENT NAME MVUTO CLEOPAS

REG NUMBER R180568L
COURSE INTELLECTUAL PROPERTY LAW
COURSE CODE LLB 301
LECTURER MR C CHINEMBIRI

DUE DATE 12 JUNE 2020

QUESTION: “Intellectual property law is an important tool for opening Africa up for business
with the rest of the world. The African Intercontinental Free Trade Area (ACFTA) agreement
makes provisions for IP law to be developed and applied to encourage, promote and strengthen
intra and international trade in goods and services. But, without effective law enforcement
mechanisms, IP law is akin to an empty noise.” With reference to the above statement, discuss
the enforcement of IP in Zimbabwe and in Africa. [30 marks]

LECTURER’S COMMENT:
………………………………………………………………………………………………………
………………………………………………………………………………………………………
……………………………………………………………………………………………………...

LECTURER’S SIGNATURE…………………………. DATE…………………………………

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1. TABLE OF CONTENTS…………………………………………………………………….2

2. Acronyms used………………………………………………………………………………3
3. Introduction…………………………………………………………………………………..4

4. Definition of terms…………………………………………………………………………...5

5. An overview of IPL at a Global Scale, in Africa and the Zimbabwean Approach….6-8

6. ZNIPPIS [2018-2022] : The Nexus Between IPL and Commerce……………………..9

7. Enforcement of IPL in Zimbabwe………………………………………………...………10

7.1 Copyrights…………………..…………………………………………………..…10

7.2 Trademarks………………………………………………………………………..12

7.3 Patents and Utility Models……………………………………………………….13

7.4 Industrial Designs………………………………………………………………...14

7.5 Integrated Circuits- Designs Layouts…………………………………………..15

7.6 Geographical Indications………………………………………………..……….16

7.7 Plant Breeders Rights………………………………………………………...….17

7.8 Trade Secrets and Confidential Information………………………………...…19

7.9 Indigenous Knowledge Systems………………………………………………..20

8. Criticism of ZNIPPIS [2018-2022] and Adverse Effects of Effective IP

enforcement Modalities to Zimbabwe and Africa…………………………………………..21

9. Consolidation of Enforcement Mechanisms and Recommendations…………………23

9.1 Judicial Activism and Remedies………………………………………………...23

9.2 Injured Party Institution of Legal Proceedings…………………………………23

9.3 Institutional Conscientisation………………………………………………...….24

9.4 Citizen Education and Awareness……………………………………………...24

9.5 Legislative Inroads………………………………………………………………..24

9.6 Financial Support to Enhance IP Enforcement………………………………..25

9.7 Office Automation and Online Enforcement…………………………………...25

10. Conclusion………………………………………………………………………………...26
11. Bibliography…………………………………………………………………………...27-31
2

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2. ACRONYMS USED

ACFTA: African Intercontinental Free Trade Area

ARIPO: African Regional Intellectual Property Organization

AU: African Union

CBD: Convention on Biodiversity

CSOs: Civil Society Organisations

DDCIP: Department of Deeds, Companies and Intellectual Property

IKS/TK: Indigenous Knowledge Systems/ Traditional Knowledge

IP: Intellectual property

IPAS: Industrial Property Administration System

IPL/IPR: Intellectual Property Law/ Intellectual Property Right

NIPGF: National Intellectual Property Governance Framework

OAPI: Organisation Africaine de la Propriete Intellectuele

RECs: Regional Economic Committees

SADC: Southern Africa Development Committee

UN: United Nations

UPOV: Union for the Protection of New Varieties of Plants.

WTO: World Trade Organisation

ZIMASSET: Zimbabwe Agenda for Sustainable Socio- Economic Transformation

ZIPO: Zimbabwe Intellectual Property Office

ZNIPPIS: Zimbabwe’s National IP Policy and Implementation Strategy (2018-2022)

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3. INTRODUCTION

Intellectual property occupies a vast domain. It has increasingly assumed a vital role
with the rapid pace of technological, industrial, scientific and medical innovation that we
are witnessing today.1 Moreover, changes in the global economic environment have
ushered in expansive commercial interconnectivity and crosspollination, influencing the
development of business models where intellectual property is a central element
establishing value and potential growth.2 In such a setup, comprehensive intellectual
property (IP) laws coupled with robust enforcement mechanisms are force multipliers in
giving Zimbabwe and Africa a cutting edge in intra and international commercial
transactions. The African Intercontinental Free Trade Area (ACFTA) agreement posits
the mutually symbiotic relationship between IP law and commerce. It is therefore, the
gravamen of this essay to give an exposition of how IP law is enforced in Zimbabwe and
Africa. It is imperative to interrogate substance harbored in the claim that an adequately
enforced IP regime is a key to unlock business potential in domestic and international
trade.

This essay defines key terms and delimits the scope of IP law. It goes on to give an
overview of IP law in Africa and enforcement mechanisms at the continental level. The
nexus between IPL and commerce is established. The essay then focuses on the
Zimbabwean IP framework and enforcement apparatuses available. Zimbabwe’s
National IP Policy and Implementation Strategy (2018-2022) is Zimbabwe’s IP roadmap
and shall be given a detailed scrutiny. Copyrights, trademarks, patents and utility
models, industrial designs, integrated circuits-layout designs, geographical indications,
plant breeders’ rights, trade secrets/ confidential information, passing off and indigenous
knowledge systems are covered. A brief discussion is made on the potential for IP law
growth in the global economy. Thereafter, conclusions are drawn and some
recommendations proffered to make IPL enforcement a game-changer in today’s
economic order. The essay below discusses.

1
Intellectual Property Law and Practice, Module 3, Institute of Chartered Secretaries of India (ICSI), New Dehli,
available at https://www.icsi.edu accessed 05/06/2020, p3
2
Ibid at p 33. See a brief discussion on the competing rationales for IP protection and various theories justifying it.

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4. DEFINITION OF TERMS

4.1 Intellectual property: It is a general term which encompasses all types of creations
of the human intellect, such as inventions, patents, copyrights, trademarks, industrial
designs, plant breeders’ rights, trade secrets and utility models among others. 3 WIPO
defines IP broadly to mean the legal rights which result from intellectual activity in the
industrial, scientific, literary and artistic fields.4 It is important to note that the two
definitions reflect that the scope of items making up IP cannot be precisely delimited.
This paper will only focus on copyrights, trademarks, patents and utility models,
industrial designs, integrated circuits-layout designs, plant breeder rights, trade secrets/
confidential information, passing off and indigenous knowledge systems. These will be
defined as each component is discussed.

4.2 Intellectual property law: The term refers to the whole regime regulating IP,
defining rights and privileges, obligations, restrictions and enforcement, be it national,
regional or international law embodied in treaties and conventions. For this paper, the
applicable legal framework for each IP component will be outlined as the component is
discussed. Emphasis is on assessment of enforcement modalities available.

4.3 IP enforcement: It refers to all the existing mechanisms available to IP owners to

avoid and restore the effects of infringing acts by compelling others to act in accordance
with their proprietary rights.5 IP enforcement rests on the conception that IP owners
have legitimate rights to the profits derived from the exploitation of that IP. Without
effective IP enforcement, the system for protection of IP is incomplete. Right holders will
be left without remedy. Thus, IP enforcement concerns the rights holders. It is primary
for them to take necessary actions to avoid and fight infringement of their IPRs using
enforcement mechanisms. Therefore, IP enforcement embraces laws, processes and
institutions involved in IPR protection.

3
NUST (Zimbabwe) IP Policy definition of terms.
4
1.1 WIPO Intellectual Property Handbook: Policy, Law and Use.
5
IP enforcement: Asserting Your Rights, Fact Sheet for European IPR Helpdesk.

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4.4 Commerce: Exchange of goods and services among economic agents, usually at a
large scale, for money or in kind.6It needs to be established how IP enforcement affects
commerce. Defining the synergy between the two is paramount.

4.5 Knowledge Based Economy (KBE): The use of knowledge to create goods and
services. It entails the dependence on high skill levels and intellect to create goods and
services through innovation.7It is that use of intellect in production which stimulates IP
protection.

5. AN OVERVIEW OF IPL IN AFRICA AND THE ZIMBABWEAN APPROACH.

The history and development of IPL dates back to the Venetian Ordinance of 1485, with
Renaissance Italy being described as the cradle for IPL.8 In this essay, IPL is best
comprehended in three phases, from the global perspective to African continental level
then subsequently cascade down to Zimbabwe. At the global platform is the World
Intellectual Property Organisation (WIPO), which is one of the specialised agencies of
the United Nations (UN).9 It was formed in 1967 and became operational in April 1970
with broad goals of promoting and protecting IP across the world by cooperating with
countries and international organizations.10Of key interest is Part 111 of WIPO which
deals with enforcement mechanisms. The World Trade Organisation (WTO)’s
Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) of 1994 is
instrumental in clarifying the synergy between trade and IP.11 It also provides standards,
rights, enforcement mechanisms and dispute resolution procedures. Other germane
instruments include the Paris Convention for the Protection of Industrial Property
(1885), the Berne Convention for the protection of Literary and Artistic Works (1886)
and the Patent Co-operation Treaty (1970). Several other treaties and conventions were
later concluded at the international level, encompassing various articles and processes

6
https://www.bussinessdictionary.com accessed 10/04/2020
7
https://www.mep.gov.sa accessed 10/04/2020
8
Intellectual Property Law and Practice, Module 3, Institute of Chartered Secretaries of India (ICSI), New Dehli,
available at https://www.icsi.edu accessed 05/06/2020, p4
9
https://www.wipo.int/directory/en/ accessed 10/04/2020
10
Ibid
11
TRIPS, part 3 enforcement of IP rights, part V, dispute prevention and settlement. The preamble specifies how
TRIPS is an embodiment of the WTO and WIPO.

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falling under the bracket of IP assets.12 It can therefore be posited that WIPO and all
other international conventions have become central hubs in defining the scope of IP,
influencing IP governance and policy frameworks, legislation, institutions and
enforcement at regional and national levels world over.

The African continent equally embraced IP protection through the African Regional
Intellectual Property Organization (ARIPO) of 1976, which domesticated WIPO and
other international conventions. It was a follow up to the Agreement on the creation of
an African Industrial Property Organization (1976). ARIPO’s mandate is to develop,
harmonize and promote intellectual property in the Member States and in Africa at
large.13 Substantive activities of the organization are implemented through four treaties
each focusing on a specific field of intellectual property. These are the Harare Protocol
on Patents and Industrial Designs, the Banjul Protocol on Marks, the Swakopmund
Protocol on the Protection of Traditional Knowledge and Expressions of Folklore. Lastly
is the Arusha Protocol for the Protection of New Varieties of Plants.14 From another
front, the African Continental Free Trade Area (ACFTA) was created and became
effective in 2019. Its objectives include spurring economic integration, trade
liberalization and expansion and also enhance industrial competitiveness among
others.15 The inception of ACFTA was simultaneous with adoption of the Action Plan on
Boosting Intra- Africa Trade (BIAT) and its seven clusters.16 Such a setup can invoke
one to question the place of IPL in enabling the realisation of such economic goals spelt
out by these regional economic blueprints. This will be thoroughly dealt with later on. 17
Meanwhile it suffices to assert that national policies, strategies employed by African
Regional Economic Communities (RECs)18 and the African continent are on the same

12
The scope of IP assets and rights is dynamic and responsive to technological, socio - economic and cultural
developments. See items enlisted under Intellectual Property on definition of terms on this paper
13
https://www.aripo.org accessed 10/04/2020
14
ibid
15
https://www.au.int>cfta>about accessed 12/04/2020
16
These are trade policy, trade facilitation, productive capacity, trade related infrastructure, trade finance, trade
information and factor market integration.
17
For the nexus between IPL and commerce, see ZNIPPIS (2018-2022), paragraph 6 below.
18
These include SADC, EAC, ECOWAS, AMU, CEN-SAD, COMESA, ECCAS, IGAD.

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footing that there is intersectionality between IPL enforcement and economic growth. 19
A look on the Zimbabwean context is apposite.

Zimbabwe has ratified most of the treaties and conventions enunciated above, notably
WIPO, TRIPS and ARIPO among others. In addition there is expansive legislation and
several institutions to promote, develop, protect and enforce IPL. The regime regulating
IPL has already been enumerated above. The Zimbabwe Intellectual Property Office
(ZIPO) was created as a section in the Department of Deeds, Companies and
Intellectual Property under the Ministry of Justice, Legal and Parliamentary Affairs. The
office has the mandate to register/grant and publish Intellectual Property rights. ZIPO is
the sole custodian of all records, books, drawings, specifications, documents, and other
papers and items relating to intellectual property rights applications filed in the pre-
colonial and post-independence Zimbabwe era. To facilitate effective IPL enforcement,
ZIPO should prioritize that IP databases be digitized and updated, ensuring IP registers
are readily available to the public where necessary. The office should also be
decentralized to provinces to improve efficiency and accessibility unlike the current
setup with only one office in Harare. Mudzvatangi (2015) challenges ZIPO to play a
central role in private and public stakeholder coordination, formulation of modalities and
action plans to operationalise the IP protection.20There is need for ZIPO to be granted
autonomy to enhance competence and professionalism as an IP focal point which
should be adequately staffed. With such strides, IP enforcement will be leveraged.

Another landmark step was establishment of the Intellectual Property Tribunal as a

specialised division of the High Court. The Judicial Laws Amendment (Ease of settling
commercial and other disputes) Act, 2017 and the Constitution are instrumental in this
regard.21 The launching of the Zimbabwe’s National IP Policy and Implementation
Strategy (ZNIPPIS) (2018-2022) was celebrated victory and regarded as an opportunity

19
UNECA. (2017). Phase 2 Negotiations —Competition, Intellectual Property Rights and E-commerce. Assessing
Regional Integration in Africa VIII: Bringing the Continental Free Trade Area About, 148 -151. Retrieved from Phase
2 Negotiations—Competition, Intellectual Property Rights and E-commerce: https://www.uneca.org/sites/
default/files/PublicationFiles/aria8_eng_fin.pdf
20
Mudzvatangi, M. (2015). IP Data Management and Uses of IP Data by IP Offices: The Zimbabwean Experience.
Retrieved November 22, 2017, f r o m
http://www.wipo.int/edocs/mdocs/africa/en/wipo_ip_hre_16/wipo_ip_hre_16_t_12_m.pdf .
21
Constitution of Zimbabwe Amendment (No. 20) Act, 2013 (the Constitution).

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for Zimbabwe to harness IPL to expand its economic fortunes. This policy framework
reflects the current position and shared aspirations for Zimbabwe’s IPL. A brief analysis
of the policy is inevitable as it underscores the nexus between IPL and commerce. 22 In
addition, the policy directly impacts IPL enforcement mechanisms in Zimbabwe.

6. ZIMBABWE’S NATIONAL IP POLICY AND IMPLEMENTATION STRATEGY

(ZNIPPIS) (2018-2022)

ZNIPPIS is a product of inter-ministerial committee and large stakeholder buy- in from

private and public sector, CSOs and WIPO expertise. The overall objective of ZNIPPIS
is to ensure that the entire intellectual property governance framework23 leverages the
country's IP potential for inclusive and sustainable economic growth and development. 24
Specific objectives include IP awareness, stakeholder sensitization, enhancing IP
literacy and professional skills development, encourage IP mobilization,
commercialization and enhance IP mediation capacities. Additionally, there is a
deliberate and well-calculated agenda to promote Zimbabwean innovators in the
pharmaceuticals industry by proactively preventing leakages of patentable research
results.25 Kanyenze et al (2017) lamented how the Zimbabwean economy has
undergone a significant structural degeneration, of which IP might be a catalyst to the
much-needed economic rejuvenation.26The policy thus seeks to spur innovation and
creativity in various sectors considered imperative to economic growth.27 The National
IP Policy also takes cognisance of Zimbabwe Agenda for Sustainable Socio-Economic
Transformation (ZIMASSET) – the country's national economic blueprint.

22
Shonge,R. (2018). Utilization of IP Data in the Zimbabwe Digital Economy. Retrieved from
https://www.researchgate.net/profile/Ramsay_Shonge/publication/325477908_Utilization_of_IP_Data_in_the_Zi
mbabwe_Digital_Economy/links/5b1061660f7e9b4981006ec1/Utilization-of-IP-Data-in-the-Zimbabwe-Digital-
Economy.
23
IPGF includes diverse laws and regulations, strategies, action plans, treaties, protocols, practices, etc., with a
bearing on intellectual property.
24
See Part II section 2.3.1 (General Objectives) of the ZNIPPIS 2018 -2022
25
Shonge R, (2018), An analysis of the Zimbabwe National Intellectual Property Policy and Implementation Strategy
(2018-2022), Africa University Available at https://www.researchgate.net/publication/331895564 accessed 12 May
2020, p48
26
Kanyenze et al, (2017), An Analysis of the ZNIPPIS [2018-2022] available at https://www.researchgate.net
accessed 14/05/2020
27
These are agriculture; industry; health; environment; art, culture and heritage; tourism; trade; and small and
medium-scale enterprises

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ZNIPPIS is vital in promoting innovation and creativity, which are the main drivers of
economic development in knowledge-based economies (KBEs) like Zimbabwe and
most African countries.28The success of a KBE is dependent on a system that promotes
knowledge based enterprises, strengthening linkages between industry and research
institutions.29 It also develops the workforce necessary to deliver IP services. Such a
system presupposes the appropriate integration of IP into the national development
framework, and the interfacing of broad national IP policies and strategies with relevant
national policy issues. It is a travesty of justice to aver that ZNIPPIS is watertight and
provides IP enforcement frameworks in toto. The policy has its own blemishes and
leakages. These are discussed later on under paragraph 8 below.

7. ENFORCEMENT OF IPL IN ZIMBABWE

7.1 Copyrights: These rights are mainly regulated by the Copyright and Neighbouring
Rights Act [Chapter 26:05] (the Copyright Act). The definitional elements of a copyright
are broadly outlined in the parent Act which goes to enumerate items for which
copyrights may be granted.30 These include literary works, musical works, artistic works,
audio-visual works and sound recordings. There are also broadcasts, program-carrying
signals and published editions.31National and regional copyright laws are largely
influenced by WIPO Copyright Treaty (Geneva, 1996).32 This impacted enforcement
institutions and mechanisms in Zimbabwe and Africa at large. Section 15 of the
Copyright Act provides that a copyright is protected for the life of the author and 50
years after the death of the author. In the case of joint authorship, 50 years after the
death of the last surviving author. It is common cause that both the broad scope of
copyrights and the timeline of 50 years poses a high risk of copyrights infringement

28
This article was first published in The Chronicle Newspaper in Zimbabwe on July 9, 2018. Mr. Aleck Ncube is an IP
Scholar and Educator at the Technopark Department, National University of Science and Technology in Bulawayo,
Zimbabwe. He is a MIP Graduate from Africa University
29
Shonge R, (2018), An analysis of the Zimbabwe National Intellectual Property Police and Imlementatin Strategy
(2018-2022), Africa University Available at https://www.researchgate.net/publication/331895564 accessed 12 May
2020, p48
30
See section 9 of the Copyright and Neighbouring Act [Chapter 26;05] for definition and prerequisites of copyright
granting. See also NUST (Zimbabwe) IP Policy definition of terms.
31
Sec 10 of the Copyright and Neighbouring Act [Chapter 26;05]
32
For further details visit https://www.wipo.int accessed 16/04/2020

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which translates to enforcement complexities.33 This area of IP is probably the most

problematic and has highest statistics of infringement in legal records.

There are several institutions and offices vital in copyright protection and enforcement.
The Registrar of Copyrights and the Copyrights Inspectors play active role during
registration procedures. They have to ensure compliance with requirements and
formalities, investigating applications for possible infringement of existing copyrights.34
On the other hand the Judiciary can award criminal penalties to any person found guilty
of infringing the provisions of the copyright law by imprisonment for a period of two
35
years or a fine not exceeding level ten or both. In S v Chiadzwa,36 Chinhengo J
reiterated that copyright is not in the idea, but the material which embodies the idea. As
such criminal sanction cannot be lightly imposed to enable monopoly of ideas. Other
remedies include damages, interdict, attachment and the rendering of accounts. In
addition an order can be made for the delivery of infringing copies or articles used or
intended to be used for making infringing copies or otherwise, as are available in
respect of the infringement of any other proprietary right.37 The Police Officers can
conduct arrests, search and seizures with or without warrants. In S v Moyo & Anor,38 the
court emphasized that the subsistence of a copyright should be proved together with
essential elements of infringement. This challenges the arresting details to arrest on
actual or reasonable grounds. This is also in sync with Anton Piller Orders.39 They are
given where there is a real and well-founded apprehension that the documents,,
infringing copies or other things may be hidden, destroyed or rendered inaccessible
before discovery can be made in the usual way. Search and seizure is then permitted to
secure the infringing material as evidence for subsequent enforcement procedures.

See Banda J, (2012), Zimbabwean Copyright Law and its effectiveness in protecting composers’ Intellectual
33

Property Rights, Midlands State University Library, Gweru.

34
See Part XII of the Copyright and Neighbouring Act [Chapter 26:05]
35
Section 59 of the Copyright and Neighbouring Act [Chapter 26:05]
36
S v Chiadzwa ZWHHC 28-04
37
Section 52(2) the Copyright and Neighbouring Act [Chapter 26:05]
38
S v Moyo & Anor ZWHBC 223/08 [2009] See also S v Svondo 1984(1) ZLR 140(H)
39
Section 57 the Copyright and Neighbouring Act [Chapter 26:05]

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The Director of Customs and Excise is empowered to combat copyright infringement at

boarders and entry points into Zimbabwe.40 This mechanism is triggered by the
copyright holder who should notify the Director of Customs and Excise in writing that
infringing copies are about to be imported into Zimbabwe. The Director can withhold
such articles or refuse their entry into Zimbabwe awaiting judicial resolution on the
matter. This method is criticized as longsome and unfriendly as the copyright holder has
to pay security costs in case he fails to succeed in his challenge to product importation.

7.2 Trademarks: A trademark is a distinctive sign which identifies certain goods and
services as those produced or provided by a specific person or enterprise. 41 In
Zimbabwe, the Trademarks Act is the key legislation in all matters relating to
trademarks. The Banjul Protocol concerning trademarks came into effect in 1997,
Zimbabwe being a founding member. Other member states include Botswana, Lesotho,
Liberia, Malawi, Namibia, Tanzania and Uganda.42 The Banjul Protocol has the force of
law within Zimbabwe. Any trade mark which has been registered by the ARIPO office in
accordance with the Protocol and in respect of which Zimbabwe has been designated
has the same effect and protection mutatis mutandis, as if registered in Zimbabwe.43
Various offices and institutions discussed under Copyrights are equally instrumental in
enforcement of the Trademark Act and to curtail trademark infringement. 44 The
Registrar’s office has to be diligent in ensuring that during registration, assignment and
transmission, actual beneficiaries enjoy the rights and privileges emanating from the
trademark.45In Livera Trading (PVT) Ltd & Ors v Tornbridge Assets Ltd & Ors 46, the
court granted interim relief of an interdict, recalling of all infringing products and delivery
of all goods. In Michael Dov Terespolsky & Anor v Morituri Restaurant & Ors 47, Rojers J
ordered damages calculated on basis of reasonable royalty. In addition, the infringing
trademark had to be removed from all products.

40
Section 60 the Copyright and Neighbouring Act [Chapter 26;05]
41
See NUST (Zimbabwe) IP Policy definition of terms. See also section 2 of the Trademarks Act [Chapter 26:04]
42
Banjul Protocol, visit https://www.aripo.int
43
Section 97A of the Trade Marks Act[Chapter 26:04], introduced by the 2001 Act,
44
See Trademarks Act, s7,8, Part XVIII (Protection of registered trademarks) and Part XV ( Offences and penalties)
45
Section 29 of the Trademarks Act [Chapter 26:04]
46
Livera Trading (PVT) Ltd & Ors v Tornbridge Assets Ltd & Ors CCZ 13-06. See also Dr Achinulo v Dr Gazi & Ors
ZWBHC 198-15 and Polaris Zimbabwe (PVT) Ltd v Zapchem Detergent Manufacturers ZWSC 68-04.
47
Michael Dov Terespolsky & Anor v Morituri Restaurant & Ors [2014] ZAWCHC 62

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7.3 Patents: The main piece of legislation governing patents in Zimbabwe is the
Patents Act [Chapter 26:03]. A patent is defined as an exclusive right granted for an
invention, which can be a product or a process.48 This covers all fields of technology
and the life span of a patent is 20 years. The threshold of novelty, inventive step and
industrial applicability should be satisfied for a patent to be granted. 49 In registration and
enforcement of patent rights, African countries are generally guided by the Harare
Protocol on Patents and Industrial Designs (2019), which is an ARIPO treaty.50 The
Patents Act has internal provisions which compliment enforcement mechanisms. These
include limiting the person entitled to make patent applications and allowing such
applications to be opposed when they are infringing.51 The applicants are also
empowered to take reasonable diligence in protecting their inventions from
unauthorised disclosure before the effective date.52Section 48(1) of the Patents Act
empowers the patentee or exclusive licensee to institute infringement proceedings and
be granted judicial remedies. Crampess and Langiner (2002) have set it clear that the
patentee has a duty of making market search and react to infringement when it is
apprehended.53 The provisional measure of Anton Piller Orders is also available for
patents.54An analysis of patent applications in Zimbabwe between years 2013-2017
shows that Zimbabweans still lag behind in making inventions which can be patented. 55
Mostly, mini- patents or utility models suffice to protect their small inventions. Even in
Zimbabwe, most patent applications are from foreigners mainly from developed
countries. This discrepancy has prompted the Government of Zimbabwe to construct

48
NUST IP policy definition of terms.
49
Shonge R, (2018), An analysis of the Zimbabwe National Intellectual Property Police and Implementation Strategy
(2018-2022), Africa University Available at https://www.researchgate.net/publication/331895564 accessed 12 May
2020., p52
50
Section 82 0f the Patents Act [Chapter 26:03] and the Schedule to the Patents Act
51
Sections 6 and 17 of Patents Act [Chapter 26:03]
52
Section 19(1)(c) Patents Act [Chapter 26:03]
53
Crampes C and Langiner C, (2002), Litigation and settlement in Patent Infringement cases, RAND Journal of
Economics vol 33, no.2, p258-274
54
Section 48A of the Patents Act [Chapter 26:04]
55
Shonge R, (2018), An analysis of the Zimbabwe National Intellectual Property Police and Implementation Strategy
(2018-2022), Africa University Available at https://www.researchgate.net/publication/331895564 accessed 12 May
2020., p52

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innovation hubs in universities 56and make infrastructural overhaul of the Higher and
Tertiary Education sector.57

Patent squabbles are rife especially world over even in developed countries. In 2015,
the US court decided Apple Incorporation v Samsung Electronics Co, Ltd 58 in which
Samsung was found liable of infringing several of Apple products’ patents. In
enforcement of patents, Gentiruco AG v Firestone 59 is apposite for providing rules of
interpretation especially where ascertaining patent specifications is critical. The same
rules were used in Orica Mining Services SA (Pty) Ltd v Elbroc Mining Products (Pty)
Ltd60 and can be instrumental in shaping Zimbabwe’s IP jurisprudence and enhance
judicial enforcement.

7.3.1. Utility Models: NUST (Zimbabwe) IP Policy defines utility models as those
mechanism designed to protect inventions prior to their patenting or protecting those
small inventions falling short to meet all the requirements of patentability. These are
common in technological and industrial incubation hubs in Universities and other
institutions, which should be key players in fostering enforcement measures. This
stimulates rapidly evolving indigenous innovations, particularly in small to medium scale
enterprises as well as in the informal sector.61Zimbabwe is making recommendable
strides in this area. If properly protected, those small inventions will gradually grow.

7.4 Industrial Designs (IDs): An industrial design is the ornamental or aesthetic aspect
of an article which can be shape, patterns, lines or colour of an article. 62African
countries are largely guided by the Harare Protocol on Patents and Industrial Designs

56
These universities are National University of Science and Technology, Midlands State University, University of
Zimbabwe, Harare Institute of Technology, Zimbabwe Defence University and Chinhoyi Univer sity of Technology
Musiiwa, M. (2018). Retrieved from https://www.zimbabwesituation. com/news/government-avails-15-million-
for-innovation-hubs universities-infrastructural-upgrade
57
Shonge R, (2018), An analysis of the Zimbabwe National Intellectual Property Police and Implementation Strategy
(2018-2022), Africa University Available at https://www.researchgate.net/publication/331895564 accessed 12 May
2020, p53
58
Apple Incorporation v Samsung Electronics Co, Ltd 786 F 3d 983 (CAFC 2015).See also eBay Inc. v MercExchange
L.L.C decided May 15, 2006 by the SC of the USA.
59
Genturico AG v Firestone SA (Pty) Ltd 1972(1) SA589(A)
60
Orica Mining Services SA (Pty) Ltd v Elbroc Mining Products (Pty) Ltd 233/2016 [2017] ZASCA 48
61
Para 40 of the NUST (Zimbabwe) IP Policy
62
See NUST (Zimbabwe) IP Policy definitions. See also section 2 of the Industrial Designs Act [Chapter 26:02]

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(2019) which is an ARIPO treaty. It deals with IDs in section 4 which spells out the
requirements, procedure and enforcement in member states and designated countries.
In Zimbabwe, the Industrial Designs Act [Chapter 26:02] is the main statute in IDs
protection and enforcement. This piece of legislation employs enforcement mechanisms
similar to those applicable in the general IP regime of Zimbabwe. The Controller and
his/her staff are empowered to protect IDs and in particular the Registrar of IDs. 63Issues
of infringement and applicable remedies are clearly outlined and the IP Tribunal is given
jurisdiction.64 Part IX provides for offences and penalties which translate to criminal
enforcement in certain cases. In Zimbabwe, most IDs are in industries like construction,
steel ware, plastic ware and carpentry among others with several private companies
offering IDs consultancy and services. In Sunsmart Products (Pty) Ltd v Flag and
Flagpole Industries,65 the court ordered an interdict, delivery of infringing designs and
damages against the respondent for infringing an ID. In Trustees of the Mukono Family
Trustee & Anor v Kaperg Investments (Pvt) Ltd & Ors,66 Foroma J held that the court
cannot enforce ID protection wherein the registration of the ID itself is a nullity. Thus in
enforcing ID rights, courts cannot blindly stifle market competition and innovation by
loosely granting remedies to frivolous and vexatious relief seekers. 67

7.5 Integrated Circuits- Layout Designs (ICLDs): These are designs related to
topographies in the electrical and electronic engineering fields. The Integrated Circuits-
Layout Designs Act [Chapter26:06] of 2001 provides for these IPRs and their
enforcement. This statute is also TRIPS compliant. The Act provides for the extent of
protection for registered layout designs and defines the period of protection to last up to
the tenth calendar from registration.68 Part X of the Act empowers the Tribunal to deal
with infringements and remedies including rendering of accounts, interdicts, damages,
attachments, delivery of infringing copies and Anton Piller orders can be invoked during

63
Section 3 and Part VIII of the Industrial Designs Act [Chapter 26:02]
64
See Industrial Designs Act [Chapter 26:02] section 46A (Remedies for infringement), section 46B (Anton Piller
Orders)
65
Sunsmart Products (Pty) Ltd v Flag and Flagpole Industries ZASCA 50[2007]
66
Trusteesof the Mukono Family Trustee & Anor v Kaperg Investments (Pvt) Ltd & Ors HH 30-18
67
See Clipsal Australia (Pty Ltd & Anor v Trust Electrical Wholesalers &Anor 2009(3) SA SCA 292, See also Jack
Maserow Manufacturers CC v AXZ Industries (PTY) Ltd [2015] ZAGPPHC 647, Premier Hangers CC v Polyoak (Pty)
Ltd [1997]1 All SA 134 (A).
68
Section 15 and 16 of the Integrated Circuits- Layout Designs Act [Chapter26:06]

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enforcement procedures.69 Criminal offences and penalties are also spelt out in sections
43 to 47 of the Act. Like any other IPR, ICLDs enforcement is a multi stakeholder task.

7.6 Geographical Indications (GIs): Geographical indication means an indication,

however expressed, which identifies a product as originating in a particular area, where
some quality, reputation or other characteristic of the product is essentially attributable
to its geographical origin70 For instance Tete goat from Mozambique is the first
geographical indication to be registered in an ARIPO Member State, a big milestone in
the history of the Intellectual Property System in Mozambique.71 The goat meat from the
Tete province is unique as it has a sweet and juicy flavor from grazing on baobab fruit
during the country’s long dry season as well as being grass-fed.

The EU-SADC Economic Partnership Agreement (EU-SADC EPA) has leveraged

international enforcement of GI between the two blocks.72 Currently its membership in
Africa includes South Africa, Botswana, Lesotho, Namibia, Swaziland and Mozampique.
South Africa has utilized this agreement to protect its GIs in the EU and SADC including
102 wines and 3 agricultural products and foodstuffs namely Honeybush tea, Roobois
tea and Karoo lamp. A special GI bilateral committee was established between South
Africa and the EU, with the mandate to monitor cooperation, exchange of information
and product specifications. It can also amend the protocol and resolve any disputes
through consultation, mediation and arbitration.73 In turn South Africa will protect over
251 GI names of the EU. ZNIPPIS, in prioritising agriculture as one of its key sectors
has recognised the significance of Geographical Indications such as Tanganda Tea and
Mazoe Oranges.74Other products will include Inyanga Coffee and Hippo Valley
Sugarcane. Nyakoto (2013) opines that the promulgation of the Geographical

69
Section 40 (remedies) ad 41( Anton Piller Orders) of the Integrated Circuits- Layout Designs Act [Chapter26:06]
70
S2 of Geogrpaphical Indications Act [Chapter 26:06], see also definition of a Geographical Indication from WIPO
71
ARIPO Magazine (April- June 2018, Issue No.2
72
Recognition and protection of GIs in the EU-SADC EPA, available at https://www.tralac.org posted 29/06/2017
accessed 15/04/2020. For a detailed critique of the Protocol and its adverse impacts, See also Andries van der
Merwe (2009), GI protection in South Africa with particular reference to Wines and to the EU, available at
https://www.researchgate.net
73
See Articles 77, 78 and 79 of the EU-SADC EPA respectively.
74
Shonge R, (2018), An analysis of the Zimbabwe National Intellectual Property Police and Implementation
Strategy (2018-2022), A FRICA University Available at https://www.researchgate.net/publication/331895564
accessed 12 May 2020., p48

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Indications Act [Chapter 26;06], which is TRIPS compliant establishes a specific legal
and institutional framework for GIs protection.75 He gives an in depth analysis of the
economic contribution and impacts of this development, as emanating from its
enforcement. The overall position in East Africa, Southern Africa and Sub-Saharan
Africa pertaining enforcement has almost same mechanisms and complexities.76

The interested person is entitled to institute proceedings regarding use of a misleading

geographical indications.77 Several remedies exist including damages, interdict,
attachment or any other as the court or tribunal may think fit.78Section 14 of the
Geographical Indications Act provides for Anton Piller Orders as in any other cases to
secure evidence of infringing products. The ZIPO and its staff including the controller,
registrars and licensing officers play key roles to facilitate enforcement of Geographical
indications. Zimbabwe should equally utilize regional enforcement mechanisms
extensively, to expand market for its GIs in the African Continent and beyond.

7.7 Plant Breeders Rights(PBRs): PBRs are IPRs granted to the breeder of a new
plant variety which gives them exclusive rights to perform certain actions concerning the
exploitation of the protected variety.79 Africa’s PBRs landscape currently consists of a
few scattered national systems across the continent.80Two main regional regimes are
the Organisation Africaine de la Propriete Intellectuele (OAPI) serving 17 mainly
Franchophone countries.81 The Arusha Protocol for the Protection of New Varieties of

75
Nyakoto (2013), The Protection of Geographical Indications in Zimbabwe: An Overview of the Relevant
Legislation, Institutional Framework and Mechanisms, Journal of World IP, available at
https://www.researchgate.net accessed 29/03/2020.
76
See Dagne Tesh (2016), GI As Tools for Agricultural Knowledge Governance IN Selected East and Southern African
Countries, Thompson River University. See also Chinedu Obi and Manyise T (2017), Protected GIs in Sub- Saharan
Africa: Issues and Implications, Journal of IP 2017, both available at https://www.researchgate.net accessed
10/04/2020. They argue that this GI protection has deprived Africans the free use of certain generic products
which were known to them and used for a long time, only now to be IPRs of mostly foreigners.
77
S10 of Geographical Indications Act [Chapter 26:06
78
S11 of Geographical Indications Act [Chapter 26:06
79
Mawere Sibanda, IP expert, Harare, available at https://www.maweresibanda.co.zw accessed 1/042020.
80
Munyi G, (2018), Intellectual Property Rights in the Plant Sciences and Development Goal in Agriculture: A
Historical Perspective, University of Nairobi available at https://scholar.google.com accessed 25/04/2020.
81
OAPI, established by the Bangui Agreement of 1977, is an IP organization including Benin, Burkina Faso,
Cameroon, Central Africa, Togo, Comoros and many others. See https://www.oapi.org accessed 15/04/2020

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Plants is one of the ARIPO treaties and is UPOV82 compliant. It provides member states
with a regional plant variety protection system that recognizes the need to provide
growers and farmers with improved varieties of plants in order to ensure sustainable
agricultural production. It has heavily influenced national legislation in protection and
enforcement of PBRs in Africa. It is worth to note that Zimbabwe is not a member of
both UPOV and the Arusha Protocol. It is recommended for Zimbabwe to attain
membership in these treaties. Zimbabwe has in place the Plant Breeders’ Rights Act
[Chapter 18:16] and implementing regulations contained in Statutory Instrument 113 of
1998. The Act provides PBRs for a period of 20 years which can be extended for a
further 5 years at the Registrar’s discretion.83 Reciprocating countries, individuals or
body corporates and multinational seed companies can apply for PBRs.84 Seed Co
Zimbabwe, Farmbiz Prime SeedCo and FSG are among the leading PBRs holders.
Inasmuch as Zimbabwe has attempted to align its PBR Act to UPOV, this effort can be
complimented by ratifying the UPOV and the Arusha Protocol. As such, certain legal
practitioners like Samuriwo Attorneys have taken opportunity to penetrate this growing
IP field, enabling clients to enforce their rights through legal experts. 85

In cases of infringement, remedies available also include damages which can be

quantified on basis of reasonable royalty, interdicts and Anton Piller Orders.86 In Roysen
Traders (Pvt) Ltd t/a Alliance Ginneries v Quiton Seed Company (Pvt) Ltd, 87 the court
had granted the respondent Anton Piller Orders to search and seize from the applicant
cotton seed that was allegedly infringing its PBRs. The seeds were then supposed to
be DNA tested in South Africa for confirmation of results. This illustrates the complexity
in PBR enforcement since it deals with genetics. In Sensako (Pty) Ltd v Registrar of
Plant Breeders’ Rights and Ors 88, Makume J reiterated that once PBRs have been

82
UPOV is an intergovernmental organization headquartered in Geneva, established by the International
Convention for the Protection of New Varieties of Plants in Paris 1961, and revised in 1972, 1978 an d 1991.
83
Section 17A of the Plant Breeders Rights Act [Chapter18:16]
84
Section 6 of the Plant Breeders Rights Act [Chapter18:16]
85
Visit https://www.samatt.co.zw or email [email protected] for further details of their operations. See also
Mawere Sibanda Commercial Lawyers at https://www.maweresibanda.co.zw
86
Section 25C of the Plant Breeders Rights Act [Chapter18:16] (Remedies for infringement), s 25D (Anton Piller
Orders)
87
Roysen Traders (Pvt) Ltd t/a Alliance Ginneries v Quiton Seed Company (Pvt) Ltd ZWHH 12-17
88
Sensako (Pty) Ltd v Registrar of Plant Breeders’ Rights and Ors ZAGPPHC 571[2016]

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granted, it is the duty of the court and the registrar to protect those rights. They cannot
be easily terminated. Muchokohori (2018) posits that promoting new plant varieties
enhance agricultural productivity and food security and enforcement of such rights is
imperative. 89
Munyi (2016) subscribes to Muchokohori (2018: above)’s standpoint but
gives a line of departure in which he echoes that intensive enforcement of PBRs poses
several threats to livelihoods of Africans and harmonization of such enforcement is but a
mammoth task.90 The adverse effects of effectively enforcing PBRs will be thoroughly
dealt with below, under the paragraph 8.
7.8 Trade Secrets/ Confidential Information. This refers to restricted, classified or
undisclosed information of an entity. Article 39 of TRIPS agreement gives definitional
elements of trade secrets. The information must be a secret (i) Not generally known or
accessible to the public, thus the information should be privileged to only a small circle
given on a need to know basis. (ii) The information should have commercial value to
give the owner actual or potential competitive advantage in his/her enterprise. (iii) The
owner should take practical and reasonable steps to keep the information as a secret.
Examples of trade secrets include formulas, patterns, methods, programs, techniques,
processes or compilations of information that provide one’s business with a competitive
mileage. Thus trade secrets can last indefinitely as long the secrets are treasured. For
instance the formula for Coca-Cola is considered to be one of the best well protected
trade secrets in the world.91 Generally trade secrets are threatened by either industrial
espionage or unauthorized disclosures by employees during their tenure or upon
departure. In addition reverse engineering processes can also compromise confidential
information. The TRIPS agreement thus provides a uniform mechanism to international
protection of trade secrets. Noting that mostly trade secrets are not creatures of
statutes, judicial systems of various countries determine requirements for obtaining

89 89
Muchokomori T, (2018), Promoting New Plant Varieties for enhanced Agricultural Productivity and Food
Security, Plant Breeders Rights Officer, Zimbabwe.
90
Munyi P, (2016) Opportunities and Threats to Harmonisation of PBRs in Africa: ARIPO and SADC , Edinburgh
University Press. See also Kabau T (2018) Implementation of Intellectual Property Obligations on Plant Breeders
Rights in Kenya: Pitfalls and Prospects, Edinburgh University Press, both available at
https://www.euppublishing.com>abs accessed 25/04/2020.
91
Intellectual Property Law and Practice, Module 3, Institute of Chartered Secretaries of India (ICSI), New Dehli,
available at https://www.icsi.edu accessed 05/06/2020, p203-205

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trade secrets protection. In Coco v A.N. Clark (Engineers) Ltd92, the test for a cause of
action for breaching confidential information at common law was laid. Often, courts have
granted injunctive relief, damages and provisional relief to prevent infringement and
adducing of evidence prejudicial to trade secrets. In addition some mechanisms like IP
audits, non- disclosure agreements and employee sensitisation are instrumental
safeguards for retention of trade secrets.
7.9 Indigenous Knowledge Systems (IKS): Mapara (2009) defines IKS as bodies of
knowledge of indigenous people of a particular geographical area which have survived
for so long.93 The Swakopmund Protocol entered into force on 11 May, 2015. It
acknowledges that traditional and local communities have for long utilised their
traditional knowledge and culture for their survival and livelihood.94 Mapara (2009)
argues that there is now a gradual disappearance, erosion, misuse, unlawful
exploitation and misappropriation of this traditional knowledge and folklore. Thus, the
treaty seeks to empower and enhance capacity of custodians of traditional knowledge
and folklore. These IKS should be protected and exploited for developmental purposes.
The scope of IKS includes agriculture, medicine, security, botany, zoology, craft skills
and linguistics.95 The role of IKS in maintaining bio- diversity, water and soil
conservation, plant and animal pest control is remarkable.96 Chronicled above are
persuasive arguments of an enriched and diverse body of indigenous knowledge. The
question which needs to be answered is how those IKS can be protected and enforced
as IPRs to spur economic growth or technological innovation in Zimbabwe and Africa at
large.
Shonge (2017), remarks that ZNIPPIS [2018-2022] is cognizant of this IKS.97The policy
framework enlists art, culture and heritage as one of the key sectors, the genus to which
IKS belongs. IKS has communal ownership, is kept in trust and is passed from
92
Coco v A.N. Clark (Engineers) Ltd (1969) R.P.C 41
93
See Mapara Jacob, (2009), Indeginous Knowledge Systems in Zimbabwe: Juxtaposing Postcolonial Theory, Great
Zimbabwe University, available at https://researchgate.net accessed on 15/05/2020.
94
Visit https://www.aripo.org/swakopmund/protocol accessed 15/04/2020
95
See Mapara J (2009), cited on note 92 above, at p 148.
96
Andre Lalonde (1993), African Indeginous Knowledge and its relevance to environment and Developmental
Activities, available at https://researchgate.net accessed 20/04/2020
97
Shonge R, (2018), An analysis of the Zimbabwe National Intellectual Property Police and Implementation Strategy
(2018-2022), Africa University Available at https://www.researchgate.net/publication/331895564 accessed 12
May 2020.

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generation to generation. Can the current IP regime protect and enforce such rights or
perhaps a sui generis system should be designed (Ncube, 2013).98 Shonge (2018) thus
remarks that ZNIPPIS 2018-2022 has not addressed how to curb or prevent bio piracy
and ensure benefit sharing with communities for IP attributed to traditional knowledge
and IKS in Zimbabwe. The complexities of enforcing such rights are not peculiar to
Zimbabwe but across Africa and beyond.99
8. CRITICISM OF ZNIPPIS (2018-2022) AND ADVERSITIES OF EFFECTIVE IP
ENFORCEMENT MODALITIES TO ZIMBABWE AND AFRICA
It has been underscored that ZNIPPIS is germane in influencing the legal and
institutional frameworks in Zimbabwe’s IP protection and enforcement. However, there
are notable loopholes which will bring further complexities in IP enforcement, unless
otherwise rectified. Firstly, the policy is riding on legislation which not only predates it,
but mostly inherited as colonial legacy which had inherent inequalities and
discriminatory models in IP and resource distribution. Yet, the policy claims to reinforce
100
NIPGF, when actually there is no such thriving framework. This calls for IP legislative
reform to reflect both the policy guideline and the constitution. Another setback is that
the policy identifies IKS as a key sector yet there is no clarity as to how communally
owned resources and traditional knowledge systems can be patented and governed in
the existing IP regime.101 This was discussed in detail earlier on under paragraph 7.9
and possible remedies proposed therein.
Probably the biggest dent in the policy is its failure to address issues of ever-greening of
patents.102 Uncensored granting of patents especially in the current economic setup in
Zimbabwe and most African countries prejudices local people. In plant breeders’ rights,
most seed companies in Africa are multinational seed companies which exploit and

98
Ncube, C. B. (2013). Harnessing Intellectual Property for Development: Some Thoughts on an Appropriate
Theoretical Framework. Retrieved from http://www.scielo.org.za/pdf/pelj/v16n4/11.pdf. see also Muza G, (2019),
The Role of Traditional Leadership and Customary Law under Sui Generis System of IPRs in Traditional Knowledge
Systems, available at https://www.zimlii.com accessed 21/04/2020
99
See Tharakan J, (2017) Indigenous Knowledge Systems for Appropriate Technology, available at
https://www.intechopen.com/books accessed 23/04/2020.
100
Shonge R, (2018), An analysis of the Zimbabwe National Intellectual Property Police and Imlementatin Strategy
(2018-2022), Africa University Available at https://www.researchgate.net/publication/331895564 accessed 12 May
2020
101
ibid
102
ibid

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develop IKS and patent them without benefiting the local communities. Chiwenga
(2010) argues that such IPR protection has largely contributed to decline of maize
output in Zimbabwe.103The same predicament is faced in drug patenting. This is
disastrous in the wake of deadly epidemics like HIV or the Covid-19 pandemic.104 If
patents are effectively enforced, then poor countries which may fail to buy from
producing countries are at high risk since they will be prohibited from producing generic
drugs.105 The case of South Africa, Kenya and sub-Saharan Africa has already been
discussed.106 Failure to tackle the issue of ever-greening stifle competition as the
government will not be able to mitigate against adverse use of IPR to stifle innovation,
creativity, productivity and information dissemination in the market and this will
adversely affect the market dynamics.107 It suffices to say that in bargaining for IPRs
enforcement and protection, African countries should not sell away their IP rights.
Adverse effects of such effective IP enforcement on developing and underdeveloped
countries should be assessed against prospective economic returns. Thus IP
enforcement should not be blindly harnessed but employed on reasonably level-playing
field.
This then calls for utilization of flexibilities in the TRIPS agreement which allows for
signing of bilateral treaties which are called ―TRIPS-plus‖ to mitigate against such
adversity. In addition mechanisms like parallel importation, early working/bolar
provisions, compulsory license granting, government use and state use during
emergency can be invoked.108 Generally these avenues permit strict enforcement of

103
Chiwenga EF (2010), The role of IPR on Maize output in Zimbabwe, Trade Center in Africa, available at
https://mpra.ub.uni -muenchen.de/38570/ accessed 19 May 2020.
104
Kokerai T, Protecting rights of access to Anti Retroviral Therapy under trade and market policies: The
Zimbabwean case, available at https://www.equinetafrica.org/files
105
See Intellectual Property Rights and access to medicines, Regional issue brief for the African regional dialogue
on the global commission on HIV and the law, held in Pretoria 4/08/2011
106
Munyi P, (2016) Opportunities and Threats to Harmonisation of PBRs in Africa: ARIPO and SADC, Edinburgh
University Press. See also Kabau T (2018) Implementation of Intellectual Property Obligations on Plant Breeders
Rights in Kenya: Pitfalls and Prospects, Edinburgh University Press, both available at
https://www.euppublishing.com>abs accessed 25/04/2020.
107
Shonge R, (2018), An analysis of the Zimbabwe National Intellectual Property Police and Imlementatin Strategy
(2018-2022), Africa University Available at https://www.researchgate.net/publication/331895564 accessed 12 May
2020.
108
All these methods are provided for in the Patent Act [Chapter 26: 03]. See sections 24A,31,34,35.

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IPRs to be relaxed to serve public interests. It is therefore, striking a balance between

enforcement and waiver.
9. CONSOLIDATION OF ENFORCEMENT MECHANISMS AND RECOMMENDATIONS

The essay discussed various types of IPRs and their enforcement. It is noted that the
legal framework, institutions, procedure and remedies involved are almost the same
across African jurisdictions and beyond. In addition there are other complimentary
efforts which create an environment conducive for enhanced IP enforcement. It is the
thrust of this part of the essay to consolidate all enforcement mechanisms separately
discussed above and provide recommendations for each avenue. These include the
following:

9.1 Judicial activism and remedies: It is undisputed that in Zimbabwe, Africa and
beyond, courts are the most instrumental apparatus in IP enforcement. Courts should
continuously build their jurisprudence on IP law, noting developments in the region and
at international scales. Where legislative remedies take too long to address emerging
issues in IP enforcement, then courts should be alive to the discrepancies in legislation
and provide interim relief as necessary. The remedies granted by courts are almost
similar regardless of place or the type of IP being protected. These include interdicts,
damages, rendering of accounts, delivery of infringing products, damages based on
reasonable royalty, recalling of infringing products from market or removal of infringing
marks. This then calls for capacity building within the judiciary to enhance IP literacy
and diversification. It can therefore be posited that IP enforcement is hinged upon
judicial institutions thus diligence and professionalism is called for.

9.2 Injured party institution of proceedings: This remedy burdens the right holder of
IP assets with the onus to activate enforcement mechanisms against anyone infringing
their IP rights and privileges. In case of copyrights, the copyright holder can institute
legal proceedings against unauthorised reproducers of his/her work and can be granted
judicial relief. This remedy is common in trademark violations, where out of mischief
rival companies can use trademarks which impersonate registered trademarks to
confuse potential clients. It is therefore upon rights holders to keep a vigilant market
survey and jealously guard on their IP assets against infringement. Arguments can be

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made that section 85 of the Constitution provides generously broad grounds for locus
standi in enforcing fundamental rights, of which IPRs fall under section 71 providing for
the right to property. Against such a background, persons other than the injured party
should have the locus standi to enforce IPRs on behalf of the injured party. This
empowers collecting societies like ZIMURA and other voluntary organizations to
stimulate enforcement initiatives. This can be a moot topic.

9.3 Institutional conscientisation: The essay enumerated various players and their
critical roles in IP protection. These include the judiciary, the legislature, broadcast
stations and studios, media houses, offices of the registrars of various IP assets,
learning institutions, financial institutions, the police services, industrial and innovation
hubs among others. All these should complement each other in their effort and utilize
their diverse expertise for efficient IP enforcement for realization of commercial value.
Across Africa, these institutions and their roles in actual or aiding IP enforcement are
almost the same. Public-private partnering and civil society engagement is of import in
harnessing IP for ACFTA activities. ARIPO, OAPI and Africa’s RECs are challenged to
embrace IP for economic leverage. Institutional conscientisation is therefore a key
enabler for Zimbabwe and Africa’s IPL enforcement effort.

9.4 Citizen education: There is much legal illiteracy on IP laws among citizens and
residents of Zimbabwe and in most African countries. Awareness campaigns should be
intensified through workshops, seminars, electronic and print media, as well as
broadcasting stations. Academic institutions can include in their syllabi IP law education
at various levels. Universities should develop or enhance their IP policies to
operationalise innovation hubs and nurture IP growth through skills development. The
populace should appreciate the scope of IP, the importance of having IP laws and the
effects since they can be either victims or perpetrators of IP malpractices.
Empowerment through education is apposite especially to foster enforcement in this
growing field of law.

9.5 Legislative inroads: Since IP is dynamic, the regime regulating this area should be
responsive to the emerging threats and challenges, providing laws which enhance IP
protection. The law defines rights, duties and privileges which are necessary for IP

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protection and enforcement. The law should be cognizant of the effects of technology,
the opportunities it creates and the hazards it presents to IP protection. IP law reform in
Zimbabwe and most African countries is long overdue. This should not be a mere
formality to lure foreign investors but laws should reflect broader national developmental
objectives. In so doing, equilibrium is maintained so that the law does not unnecessarily
impede innovation, use of ideas, inventions and marks in market competition especially
for undeveloped economies. The harmonization of IP laws and enforcement
mechanisms at continental level through existing legal and institutional frameworks is
imperative.

9.6 Financial support to enhance IP protection: The essay bemoaned financial

inadequacy to support IP protection and enforcement efforts. All the recommendations
made remain unrealized if they are not financially backed up. The government, civil
society organizations, banking institutions and other key players can help avail funds for
IP protection. Procurement of equipment and infrastructure, training, salaries and wages
and risk insurance all depend on fiscal capacity and discipline. Only adequate financial
backup can breach the obstacle between theorizing and operationalising IP
enforcement in Zimbabwe and Africa. This calls for national fiscal policies to be revised
so as to increase expenditure on building IP enforcement capacity which is a key driver
of knowledge- based economies.

9.7 Office automation systems and online enforcement: Various institutions involved
in IP protection and enforcement should have digitized databases of various IP rights
holders. This office automation saves time, facilitates IP analysis and enables efficient
back up of information and easy cross reference between offices at national and
supranational platforms. Given the growth of electronic commerce and dependence of
IP on ICT, it is ideal for the Registrars’ office of various IP assets and other institutions
to go digital. This enhances tracking of IP assets, making market surveys, establishing
clientele base and receiving real time feedback and tip- offs in cases of IP law
infringements. The European Union relies on IP online enforcement which is mostly
evident in commercial software application vending and licensing. As Zimbabwe and

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Africa make strides in digitalization, working on modalities for online IP enforcement is

welcome.

10. CONCLUSION

In conclusion, Zimbabwe’s IP regime covers several aspects elaborated in the essay.

The place for IP in intra and international commerce is well established and there is high
potential for IP growth in the global economy as echoed in the ACFTA. The essay
substantiates the view that the cutting edge of IP in modern business is only realized if
there are robust enforcement mechanisms of IP laws in place. It is only then that IP can
be a game-changer in commerce. Various barricades and drawbacks in the effort to
effectively harness IP in business transactions have been aptly discussed. To
ameliorate the commercial world against such negative forces, some recommendations
have been put forward for Zimbabwe and Africa. These include, among others, citizen
education, legislative inroads, institutional conscientisation, judicial activism, injured
party outcries and office automation systems. IP enforcement is therefore a multi -
stakeholder task which should be approached from different frontiers but with unity of
effort. Without such an enforcement threshold, IP law is just but a brutus fulmen or a
definitional fiat of another legal rhetoric in contemporary business practices.

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