Anti-counterfeiting in East Africa is a topic in vogue, highlighted
by the Kenya Anti-Counterfeit Act (Number 13 of 2008) and the
interlocutory ruling of Justice Mwendoh, dated April 23 2010 in Kenya
High Court Petition Number 409/2009 Ochieng', Atieno & Munyi v
Attorney General. Reading Ochieng's case revived 1960s memories of a
truckload of fake Aspro drugs destroyed by order of the then Supreme
Court of Kenya, and the thoughts that:
- Counterfeiting (by whatever name):
- Is timeless.
- Exploits trade marks, patents and other legitimate rights.
- Exploits the national character of industrial property rights, but is
international. - Specialised anti-counterfeiting legislation is important but other
weapons have always been available.
The Aspro in issue started as generic acetylsalicylic acid tablets,
perfectly serviceable before being wrongfully packaged in filthy
conditions. That case was about a trade mark; health was a side issue
but relevant to the offending product's fate.
During the 2000s, Kenya IP pirates were raided under the Trade
Descriptions Act; see Managing Intellectual Property June 2007,
"Ingenious measures and a setback". The Secretariat, active in those
adventures, was disbanded as the new legislation approached.
The Anti-Counterfeit Act is based on that of South Africa, around
which much experience has accumulated. It is not yet in force. The
methodical construction of infrastructure (rules, people and premises)
continues but a date for the commencement of the Act cannot be
predicted.
Health rights are fundamental in Ochieng's case. The petitioners
apprehend that the Act may be so interpreted that generic medicines for
HIV sufferers are categorised as counterfeit goods; therefore, sufferers
are deprived of a constitutional right to obtain those medicines. They
seek declarations to that effect and pending determination of those
issues, requested interlocutory orders delaying enforcement of the
affected sections of the Act so far as they relate to generic drugs and
medication.
The judge, satisfied that the petition was not frivolous and
disclosed an arguable case, granted the interlocutory orders.
Accordingly after the Act comes into force, it cannot immediately be
used to prevent import of generic drugs and medicines. Nevertheless,
there is no decision at this stage on the constitutionality of the
Anti-Counterfeit Act. That decision awaits trial of the main case.
Meanwhile on other fronts in East Africa:
- Tanganyika (Mainland Tanzania), lacking a specific
anti-counterfeiting statute, has revitalised the Merchandise Marks Act
under which offenders are prosecuted before the magistrates' courts.
This effective grassroots remedy is insufficiently enforced in practice.
- The other part of the United Republic of Tanzania is Zanzibar. Here,
in Rwanda and in Burundi consolidated industrial property codes are
coming into effect. They are on the World Intellectual Property
Organisation (WIPO) model with comprehensive enforcement sections
including border measures.
- Uganda has a bill, similar to the Kenya and South African Acts,
under Cabinet consideration.
- The East African Community has published another, similar draft Act,
which its protagonists would like to see as a regional statute in place
of individual national laws.
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