The recently formed Inter-Agency Anti-Illicit Trade clique sounds like it could have been a WhatsApp group. In last Friday’s Kenya Gazette, the Minister at the time announced the establishment and appointment of both an Inter-Agency Anti-Illicit Trade Executive Forum (23 members in total) and an Inter-Agency Anti-Illicit Trade Technical Working Group (24 members in total). The Executive Forum and Technical Working Group are apparently expected to deliver on the President’s Big 4 Agenda pillar of enhancing manufacturing so that the sector contributes 15% to the country’s Gross Domestic Product (GDP) from 9.2% in 2016.
In 2008, Anti-Counterfeit Agency (ACA) was birthed as Kenya’s TRIPS-plus experiment to spearhead intellectual property (IP) rights enforcement by coordinating efforts among various state agencies. In our humble opinion, ACA deserves no score higher than 3/10 for its performance in fulfilling its overall statutory mandate in Kenya.
It was envisioned that ACA would be a shining example of an inter-agency approach to IP rights enforcement with private sector coordination. Ten years later, it is safe to say that ACA has failed to live up to its potential. The reason? Two words: Institutional Corruption.
Seriously, if you’re a stakeholder of Anti-Counterfeit Agency (ACA), you should be very concerned about some of the dangerous signs that were on full display during the ACA ‘Stakeholders Consultative Forum on the Proposed Amendments of the Anti-Counterfeit Act, 2018: Towards Improving Service Delivery of the Big 4 Agenda’ held on 13 June 2018 at Boma Inn Hotel, Nairobi. These proposed legislative changes have been previously discussed on this blog here, here, here and here.
In a recent article in the Business Daily titled: ‘Proposed law on counterfeits will hurt businesses’, the foremost intellectual property (IP) law practitioner in the country, William Maema, has faulted Anti-Counterfeit Agency (ACA) on its proposed amendments to Anti-Counterfeit Act previously discussed on this blog here, here and here. In his hard-hitting article, Maema notes:
‘Apart from the vainglorious step of christening the Anti-Counterfeit Agency (ACA) by renaming it the Anti-Counterfeit Authority ostensibly to raise its profile to that of premier parastatals such as the Kenya Revenue Authority, Kenya Airports Authority and Communications Authority of Kenya, the new proposals achieve little else that is praiseworthy. ‘
The word ‘Disconnect’ (see caption image above) may be the title of the latest Kenyan blockbuster film but it also embodies the current raging debate over proposed changes to The Anti-Counterfeit Act No. 13 of 2008. In our previous blogposts here and here, we have largely dwelt on the demerits of the proposals contained in the Statute Law (Miscellaneous Amendments) Bill 2018, which if enacted, would radically affect intellectual property (IP) enforcement in Kenya, principally undertaken by Anti-Counterfeit Agency (ACA).
Meanwhile, some readers of this blog, who happen to be IP practitioners specialising in brand enforcement and anti-counterfeiting matters, have rightly pointed out that it is equally important to consider the merits of and benefits expected from the proposed changes to the Act if and when the omnibus Bill is enacted. In particular, this blogpost will focus on the proposals relating to offences and the ‘recordation’ requirements.
For more news stories and developments, please check out the #ipkenya hashtag on twitter and feel free to share any other intellectual property-related items that you may come across.
Have a great week!
Yesterday the Anti-Counterfeit Agency (ACA) posted this response in the comments section of our blogpost last week titled: ‘Controversial 2018 Proposed Amendments to The Anti-Counterfeit Act’. In the face of widespread criticism from intellectual property (IP) experts, ACA has defended its proposed amendments to the Anti-Counterfeit Act which, if enacted, would effectively introduce a system for mandatory ‘recordation’ of trade marks, copyright and plant breeders rights to be administered by ACA.
Prior to writing that blogpost, this blogger had reached out to ACA for an official comment asking the following question: ‘What is your response to public concerns about the implications of the draft amendments to your Act on 1) the mandates of Kenya Industrial Property Institute (KIPI) and Kenya Copyright Board (KECOBO); 2) ease of doing business in Kenya generally; 3) international best practice?’ All the various responses from ACA will be considered in this blogpost.