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Generics could be labelled counterfeiters in Kenya

Managing Intellectual Property


Kenya published Anti-Counterfeit Regulations on August 27, implementing the 2008 Anti-Counterfeit Act. How they affect the debate over generic medicines, however, will have to wait for a decision from the High Court. Until then, say John Syekei and Haanee Khan, generic manufacturers should beware the risk of being labelled counterfeiters

The Act's main reform is that it establishes an Anti-Counterfeit Agency, which will coordinate the fight against counterfeits across Kenya. However, the Act does not provide civil remedies, so an aggrieved person must establish infringement of IP law. It also fails to define "counterfeiting" adequately, and permits the Kenyan authorities to return counterfeit goods to their country of origin rather than destroying them.

The Regulations now provide the mechanism for IP owners to use the Act to enforce their rights. Owners have to submit the particulars of their IP rights to the Agency, which will maintain a database. The Agency can then use that information to actively investigate and eliminate suspected counterfeit practices. The Regulations also permit IP owners through their agents to report suspected counterfeit goods to the Agency, whose inspectors are empowered to search and seize any goods that breach IP rights.

Impact on pharmaceuticals

The pharmaceutical industry...


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