Consumers can sue over harmful products

The ongoing sugar scandal in Kenya puts to light the dangers of uncurbed counterfeiting and illicit trade.

Counterfeiting is a form of illicit trade that mostly involves sub-standard products and poses a major risk to consumers. The claims that the seized contraband sugar contains harmful substances such as mercury and lead is perturbing.

Counterfeits are bad for the economy since smugglers seldom pay any taxes, leading to loss of revenue. It also affects the revenue streams of a legitimate manufacturer.

Some of the ways counterfeiting is done are when contraband products are repackaged to pass off as leading brands. This spoils the reputation of the manufacturer.

Counterfeiters also seek to ride on the goodwill of the legitimate manufacturers, genuine product owners lose their market share to the illegal goods.

Counterfeiting is an unfair trade practice whether the goods involved are substandard or not. Interestingly, at times the counterfeited product may be of a superior quality than the original.

Kenya has one of the best laws globally on counterfeiting. It is the only East African Community country with a standalone law and agency that deals with the illegal trade —the Anti-Counterfeit Agency. Other State agencies such as the police, Kenya Bureau of Standards as well as consumers and the private sector have a key role to play in the war on the illegal trade. Despite the sound legal framework, counterfeit remains rampant in Kenya. Perhaps the agency does not have enough institutional capacity to tame the vice.

For example, the inspectors who have some prosecuting powers may not be sufficiently trained in handling counterfeit as a crime.

Furthermore, little priority is given to counterfeiting as a crime and most of the times the illegal trade is treated as a petty offence. Therefore, there is no sufficient deterrence.

The law provides for inspectors with powers to inspect, seize and detain suspected counterfeit goods as well as arrest the perpetrators.

The law criminalises possession, manufacturing and sale of counterfeit goods.

As a legitimate manufacturer, what steps can you take when someone counterfeits your goods? You may lodge a complaint to the anti-counterfeit agency and apply for seizure and detention of the counterfeit goods.

The agency prosecutes the perpetrator with the company as a key witness. You may also seek a court injunction stopping the counterfeiter from selling the goods. You may also seek remedies for intellectual property rights infringement or file a suit for damages for the tort of passing off and unfair trade practices.

If you have been affected by the counterfeit goods you can file a suit against the counterfeiter for damages.

As a consumer affected by counterfeit goods, you may give a consumer notice under the Consumer Act or litigate the matter noting that you have consumer rights.

There are some ongoing reforms to the anti-counterfeit laws and I believe that provision of more deterrent sentences would minimise the vice. Elements of anti-counterfeit remedies are contained in other laws such as consumer laws, torts laws, and intellectual property laws, civil and criminal remedies.

There are several remedies you can resort to.