The Kenyan authorities have published a bill, the Statute
Law (Miscellaneous Amendments) Bill 2018 (the Bill), which
proposes significant changes to two pieces of IP
legislation.
The amendments proposed to the Anti-Counterfeit Act 2008 are
controversial. They effectively create a dual trade mark
registration system. All trade marks relating to goods being
imported into Kenya will need to be recorded with the
Anti-Counterfeit Authority (ACA). What makes dual registration
mandatory is the fact that it will be an offence for an
importer to import goods bearing a trade mark that has not been
recorded with the ACA, and a trade mark registration will be
required in order for the trade mark to be recorded at the ACA.
The recordal provisions apply not only to trade marks but also
to "copyrights, trade names or any other form of intellectual
property rights", despite the fact that there is no copyright
registration in Kenya. Importers will be issued with a
"certification mark" in the form of an anti-counterfeit
security device. The ACA will have the power to seize and
destroy any imported goods that do not bear the
anti-counterfeit device.
The Bill creates some interesting offences. It will be an
offence to import into Kenya any unbranded goods except raw
materials. It will be an offence to fail to or falsely declare
"the quantity or the intellectual property right subsisting in
any goods being imported into Kenya."
The amendments proposed to the Industrial Property Act 2001
(IPA) deal with patents and designs. For patents, the Bill says
that a patentee must disclose "the best mode" for carrying out
the invention, and that in cases of joint ownership, third
parties may only carry out certain acts with joint permission
from joint owners. For industrial designs, the Bill
specifically excludes anything that serves solely to obtain a
technical result, methods or principles of manufacture or
construction, and creations of a purely artistic nature. It
also introduces some new definitions, a new novelty provision,
and provisions regarding the confidentiality of an application
before publication.
Hopefully the Kenyan authorities will reconsider some of the
amendments proposed to the Anti-Counterfeit Act.
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| Wayne Meiring |
Spoor & Fisher Jersey
Africa House, Castle Street
St Helier, Jersey JE4 9TW
Channel Islands