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Kenya takes a hard line in its ‘war with counterfeiters’

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Dedicated anti-counterfeiting legislation and a ‘dual registration system’ are among the measures that demonstrate how seriously counterfeiting is taken in Kenya. Duncan Maguire of Spoor & Fisher Jersey summarises two recent developments

Lawyers who have been involved in IP matters in Kenya will know that things are a little different in this East African country. Kenya has a serious counterfeiting problem, but it has taken (and is continuing to take) steps to deal with the problem. Kenya is one of those rare countries that has dedicated anti-counterfeiting legislation, the Anti-Counterfeit Act No. 13 of 2008. Kenya also has a dedicated anti-counterfeiting body, the Anti-Counterfeit Authority (ACA).

Even more remarkably, Kenya has what is sometimes described as a ‘dual registration system’, one that requires trademark owners to separately record their trademark registrations with the ACA (and renew these recordals annually), in order to better enable the ACA to identify and seize counterfeit goods entering the country. For obvious reasons, trademark registrations that simply cover services do not require recordal.

While the ACA recordal process is still evolving, it is ultimately envisaged that trademark recordal with the ACA will involve the issuance on an annual basis of a ‘certification mark’ in the form of an anti-counterfeit security device. Goods exported to Kenya and not bearing the device will be destroyed.

The ACA has a high public profile in Kenya, and it is often in the news. Two recent developments involving the ACA are worth noting.

A matter of national defence

The ACA has announced that it is collaborating with the National Defence University-Kenya (NDU-K).

An ACA posting dated September 6 2023 explains that NDU-K is “recognized as the Defence Forces of Kenya University specializing in defence and security studies”. The posting further tells us that the discussions between the two institutions have focused on “understanding counterfeiting trends and leveraging NDU-K's capabilities in training and intelligence gathering”. It goes on to say that the collaboration “seeks to ensure counterfeiting and illicit trade do not endanger the country”.

This news suggests that the Kenyan authorities take the view that the country is involved in a war with counterfeiters.

A matter of collaboration with business

In a posting on August 28 2023, the Kenya International Freight and Warehousing Association (KIFWA) announced that it has agreed to strengthen collaboration with the Kenyan government in its quest to combat trade in counterfeit goods. The announcement followed a meeting between the executive director of the ACA, Dr. Robi Mbugua Njoroge, and the national chairman of KIFWA, Mr. Roy Mwanthi. The meeting took place in Mombasa, a port city through which much of Kenya’s international trade passes.

The posting suggests that there is increasing recognition in Kenya that regulation and collaboration are needed to ensure the integrity of the shippers and logistics providers. Mr. Mwanthi has seemingly made it clear that his organisation’s members are ready to collaborate with government agencies to comply with the law and promote legitimate trade. Such collaboration will no doubt be very welcome.

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