IPR recording rules a key weapon in counterfeits battle

Kenya has made significant progress in the war against counterfeit goods, with a robust multi-agency approach being implemented, and a raft of legislation to ensure fake products do not impede the country’s development progress.

Despite these achievements, several problems still exist. These include the Anti-Counterfeit Authority's (ACA) prior operations being more reactive than proactive due to inadequate intelligence on the counterfeit industry. This has made monitoring of commodities difficult, together with border porosity and the rising volume of e-commerce.

Therefore, it has been decided that a data-driven strategy for combating counterfeit is essential. In light of this, the Anti-Counterfeit Act was amended to include the Intellectual Property Rights (IPRs) Recordation Regulations.

The Act's new Section 34B mandates that ACA record IPRs that pertain to products being imported into Kenya, regardless of whether that IPR is registered domestically or abroad.

But what is recordation?

Recordation is the collecting of information from IPR owners about their registered IPRs — trademarks, copyrights, trade names, or any other protected intellectual property right — for all goods being imported into the country.

The information is then entered into an electronic database (https://public.aims.aca.go.ke/) for use by border regulatory and enforcement officers at various points of entry to verify the IPR status of the goods to be imported.

The automated online Integrated Management System (AIMS) will make it possible to file applications for the recordation of IPRs, declarations of the specifics of IPRs applied to imported goods, requests for the renewal or modification of any existing recordation of IPRs, required applications for admission as an IPRs recordation agent, and reports relating to counterfeit goods.

It is impossible to deny the advancement that will be made if recordation is fully implemented throughout the nation. The proposed system will assist the government in implementing the constitutional requirement that the State encourage, promote, and safeguard the intellectual property rights of Kenyan citizens.

On the other hand, the system will boost productivity by providing dealers with a resource for data on the imported goods. By doing this, they will be protected from the unfavourable consequences of law enforcement, such as losses resulting from seizures, arrests, criminal charges, fines, and the destruction of property.

A recordal system will also improve the multi-agency approach to fighting counterfeiting by providing cooperating government agencies with rapid access to information about the goods and contact information in the event of a suspected infringement.

Equally worthy of note is that IPR Recordation shifts product knowledge monopoly from just the IPR owners and law enforcement and brings on board consumers into the war against counterfeiting and other forms of illicit trade.

The commencement of the implementation of the IPRs recordation is scheduled to take effect from 1st January 2023, where all IPR owners will be expected to be fully compliant.

With these far-reaching changes and the multi-faceted nature of the anti-counterfeit war, it is prudent to acknowledge that a full implementation of the IPRs Recordation and its enforcement cannot be an event but a process.

A process that we must expedite nonetheless, considering what is at stake. The Anti-Counterfeit Authority continues to work together with various stakeholders to streamline the implementation of the regulations and to continuously address any teething challenges that may arise.

In the end, a genuine pebble is preferable to a fake diamond. The economy is affected by counterfeit goods in terms of commerce, investment, employment, innovation, and—most significantly—consumer health and safety.

As an illustration, counterfeit medications that affect people's health, agricultural inputs that result in poor harvests and rising food insecurity, and electrical devices that are prone to fires and other hazards. Through the disposal of inferior products and harmful effects from their destruction, counterfeit goods pose a severe threat to the environment.

As Kenya continues to roll out and implement IPRs recordation, we must all pull together to make it a reality. The development milestones that can be achieved when we promote fair trade and uphold genuine and authentic goods cannot be overemphasized.

Writer is CEO, Anti-Counterfeit Authority

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