An amendment of the Anti Counterfeit Act 2008 is long overdue and a stakeholder’s forum held today at the Utalii Hotel seeks to hasten the process by collating stakeholders input. The Seminar was convened by the Anti Counterfeit Agency (ACA) and members of the Kenya Association of Manufacturers (KAM) turned out in numbers and Fridah Mbugua, KAMs legal officer presented the input of the private sector.
Protection of Intellectual Property (IP) rights in the country has been a long running battle. “We enforce IP rights to ensure that Kenya competes and that the public is safe. We cannot allow people to access cheaper goods that will compromise other sectors of the economy,” said Mr. S. O. Mallowah, CEO of the ACA.
Intellectual Property Infractors are also using more sophisticated ways of getting counterfeit goods into the country making a review of the existing legislation even more urgent. “One of the things not captured is how to deal with Cyber counterfeiting,” said Mr. A. G. M. Kamau, chairman of the board of directors at the agency. Mr. Kamau said that current IP legislation in Kenya was quite sophisticated since the country has brought its laws into compliance with internationally accepted standards such as WTO legislation.
Among the amendments suggested for the new act include, a change to the title and introduction of the new definitions of legal terms such as ‘consumer’, ‘counterfeit medicine’ ‘counterfeit mark’ among others. These changes will seal loopholes in the existing legislation.
Ms. Mbugua also called for the need to clearly define the roles of enforcement agents. “The role of an inspector and the role of a prosecutor need to be separated. There are various legislation that have come in place since the promulgation of the constitution including the establishment of the office of the DPP in line with the constitutional requirements so a harmonization needs to be done with the entire prosecution framework that exists,” she said.
The proposal to include the term ‘counterfeited medicine’ were subjected to closer scrutiny during the panel session as some participants felt they had been given but KAM’s Anti Counterfeit officer defended the submissions.
‘Generic medicines are easily counterfeited and we have to protect Kenyan from consumption of fake medicine,’ he said and justified the definition of the term 'Parallel imports.' “A clear definition of the term ‘Parallel imports’ would safeguard Kenyans from the importation of these fake generics,” he added. KAM would also like a definition of the term ‘passing off’ so that inspectors can now start looking into this issue.
“Over 60% of issues related to IP are related to Pharmaceutical goods. There are total misconceptions spread deliberately by multinationals to the extent that people have come to believe that generics are counterfeit and substandard. Therefore there is need for a deliberate attempt to deal with this issue and because of the impact of this misconception,” said Dr. Karanja from the Pharmaceutical Sector.
"As far as counterfeiting is concerned, it is the position of the PPB, that the ACA should concentrate on the issue of the infringement of the brand only otherwise other issues fall under the functions of the PPB," said Dr. Paul Mwaniki, the chairman of the Pharmaceutical Board and a members of the Pharmacy and Poisons Board.
“ACA does not undertake criminal enforcement of patents. Once you approach it with this mindset, Issues of efficacy, active ingredients do not apply to us. The agency actually protects that generic drug that you are using,” countered Mr. Mallowah.
Intellectual property is a key driver of GDP growth and IP infringements harm the manufacturing sector. Kenya is particularly suspect to the infringement of trademark laws.