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. ‘
“In the circumstances of this case accordingly, it is difficult to understand how the Registrar of Trade Marks whether under Section 14 or 15 of the Act, arrived at his conclusions. The marks are clearly phonetically and visually different and are not similar or identical. The goods are by colour, shape and size different. The goods are by constitution not identical or similar. The likelihood of the goods being dealt with by the usual public is meagre. The possibility of a confusion arising therefore is also meagre.” – Onyancha, J on 25th day of May, 2015.
This blogger has recently come across the judgment in the case of Pharmaken Limited v Laboratories Almirall S.A  eKLR. A copy of the judgment is available here.
The background of this case is as follows: Pharmaken applied for registration of the trade mark “ZYRTAL MR” in class 5 for human medicine. The application was examined and later approved for advertisement. Almirall filed a notice of opposition to the registration of the mark. Almirall stated that it owns the trade mark number 39575 “AIRTAL” in class 5 which has become well known to the Kenya public. Almirall further alleged that the said application resembles their trade mark “AIRTAL” visually and phonetically and that confusion would arise in the mind of the public.
The Mail and Guardian (M&G) newspaper in South Africa published a story titled: “Motsoaledi: Big pharma’s ‘satanic’ plot is genocide” where it is reported that Health minister Aaron Motsoaledi is livid about a pharmaceutical company campaign he says will restrict access to crucial drugs. This plan which was leaked to the press is now at the heart of the so-called #PharmaGate scandal which has received widespread condemnation.
All in all, this blogger submits that #PharmaGate exposes the South Africa government’s criticized track record with regard to implementation of existing laws relating to access to medicines. In addition, the Trade and Industry’s Ministry unsatisfactory drafting of the DNIPP is exposed once more. Therefore the Health Minister’s latest sensationalist remarks reported by the M&G appear to be intend to deflect attention from the above issues of poor implementation and drafting by the Executive branch. As for the drug companies, #PharmaGate only exposes the capitalist and pro-intellectual property (IP) ownership stance of Big Pharma, aptly captured in the critically acclaimed documentary, “Fire in The Blood”, whose trailer is featured above.
Read the full story here.
This blogger has inadvertently stirred a heated debate on social media involving health activists who are actively engaging the government to review Kenya’s Anti-Counterfeit Act. This blogger alerted the twitter accounts of Aids Law Project (ALP), the Anti-Counterfeit Agency (ACA) and the CEO of ACA to an article published on the CIPIT blog by Paul Ogendi – Deputy Director at ALP. In this article ALP raised concerns on the goverment’s implementation of the High Court’s judgment in Patricia Asero Ochieng & 2 Others vs Attorney General. This landmark decision declared the Anti-Counterfeit Act unconstitutional because of its provisions affecting access to essential medicines including generics. In his twitter response, Stephen Mallowah the ACA CEO stated as follows:-
These responses by the ACA sparked off a spirited twitter campaign under the hashtag #TellACABoss where various health activists reaffirmed that the constitutional rights of people living with and affected by HIV, TB and Malaria remain threatened unless the Anti-Counterfeit Act is reviewed particularly section 2 which defines “counterfeit”.
Read the rest of this article here.