Importers race to beat anti-counterfeits law July 1 deadline
Anti Counterfeit Authority (ACA) Chair Flora Mutahi speaking during the commemoration of the World Anti- Counterfeit Day at the College of Insurance South C, Nairobi on June 24, 2021.
What you need to know:
- Anti-Counterfeit Authority directs traders to list intellectual rights of incoming goods.
- Failure by importers to adhere to this requirement will result in prosecution and penalties.
Importers and their agents are caught in a compliance race after the Anti-Counterfeit Authority (ACA) yesterday set a July 1, 2022 deadline to register the intellectual rights (IPRs) on all goods to be shipped into Kenya.
The agency said the IPRs of all goods imported into the country will be mandatorily registered with it irrespective of their place of origin as part of a strategy to deal with rising trade in counterfeits in the country.
“It is an offence to import into Kenya, goods whose IPRs have not been recorded with ACA,” the State agency said in a notice to importers.
Trading in counterfeits has become a multi-billion-shilling industry in Kenya, spanning all key sectors of the economy including car parts, alcoholic beverages and electrical appliances, medicines, building materials, baby foods, clothes, and cosmetics among others.
“No IPR agent shall be eligible to perform any functions with ACA from July 1, 2022, unless they so admitted and registered. CA also notifies prospective importers of the mandatory requirement to declare particular intellectual property rights for goods to be imported into Kenya from July 1, 2022” the ACA said.
The changes introducing the mandatory recording of IPRs are contained in Section 34B of the Anti-Counterfeit Act, Legal Notice No.117, and Legal Notice No.118 of 2021.
“The significance of this new regulatory requirement is that the ACA has taken a pro-active approach in fighting counterfeits through the record of intellectual property rights.
“Prior to recordation of IPRs, brand owners bore the burden of monitoring goods sold in the Kenyan market and thereafter reporting any counterfeits to the ACA” Agnes Akal, David Opijah, and John Syekei, associates at a law firm, Bowmans said in a joint note on the new regulations.
“The Recordation of IPRs will therefore significantly contribute to combating counterfeit trade more so from the border entry points” they further said.
The new IPRs registration requirement by ACA means it will be illegal to import goods into Kenya for commercial purposes if they bore a trademark, trade name, or copyright that is not recorded in the State agency’s database.
Failure by importers to adhere to this requirement will result in prosecution and penalties.
According to the law, the penalty for a first-time offender is three times the value of the prevailing retail price of the goods while a subsequent offender will be penalized five times the value of the prevailing price of the goods.
A first-time offender is also liable to an imprisonment term not exceeding five years while a subsequent offender’s imprisonment term is a maximum of 15 years.
This penal consequence is in addition to the ACA seizing and forfeiting for the destruction of the non-compliant imported goods.
Given the potential financial and criminal consequences, we strongly recommend importers ensure compliance.
