The long awaited anti-counterfeiting (record keeping) regulations have finally been released – Intellectual Property

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South Africa: The long awaited anti-counterfeiting (record keeping) regulations have finally been released

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In January 2019, the Kenyan Parliament enacted the 2018 Law (Various Amendments) to make some changes to various intellectual property laws, including the Anti-Counterfeit Act of 2008 (‘The act‘).

Among other things, the name of the Anti-Counterfeit Agency was changed to Anti-Counterfeit Authority, and the law primarily provides for formal registration applications for intellectual property with the Anti-Counterfeit Authority. The law provides that an application for registration must be submitted in the prescribed manner and with payment of the prescribed fees. However, implementation has been put on hold pending publication of the relevant regulations.

The Anti-Counterfeiting Regulations (Record) (The Regulations) were approved on Jan.approx July 2021 in terms of imprint 118 of 2021) Link here. The regulation provides that an application for the registration of an intellectual property right in relation to goods to be imported into Kenya must be submitted by the owner of the intellectual property in a prescribed form and along with the payment of prescribed fees. The relevant forms and official fees are listed in the first and second appendix to these regulations.

After receipt of the application for registration, the forgery authority will inform the applicant in writing of the approval or rejection of the application. If the registration is approved, the registration is valid for 12 months and can be renewed one month before its expiration date in a prescribed form and with the payment of the appropriate fee.

The following information and / or documents are required for the application for registration:

  • Name of the intellectual property right owner (the applicant);
  • Contact details and address of the applicant;
  • Name and contact details of the applicant’s representative or local distributor, if any;
  • Properly signed power of attorney;
  • Copies of the certificate of registration or renewal of the intellectual property right (s);
  • Samples or digital images of the applicant’s protected goods;
  • Name, contact details and address of any foreign person or business entity authorized or licensed to use the applicant’s intellectual property;
  • The identity of a parent or subsidiary company, or any other foreign company, jointly owned or controlled, using intellectual property law abroad; and
  • Place of manufacture of genuine goods (ie goods bearing the registered intellectual property right (s)).

This is an exciting piece of legislation in the fight against the rampant imports (and perhaps smuggling) of counterfeit goods into the Republic of Kenya. This development will undoubtedly strengthen the moral and assertiveness of the Anti-Counterfeit Authority and encourage other East African nations (and other countries in Africa) to follow suit.

The Anti-Counterfeiting Agency is currently engaged with various stakeholders regarding the implementation of the registration process and it is expected that an online system will be put in place to facilitate the smooth running of the process.

The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.

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