The Anti-Counterfeit (Recordation) Regulations were released in July 2021 by Kenya’s Cabinet Secretary for Industrialization, Trade, and Enterprise Development. Regarding the import of goods bearing those intellectual property rights, the Regulations call for the recording of those rights with the Kenyan Anti-Counterfeit Authority (ACA).
The Regulations make it simple for the ACA to identify the legitimate owners of intellectual property rights and stop the unauthorized importation of products connected to intellectual property.
Finally, on April 26, 2022, the ACA published a public notice on the recordal of imported goods relating to intellectual property (IP) with effect from July 1, 2022, which was later extended to January 1, 2023.
The ACA now requires an IP owner who imports goods into Kenya to register such rights separately. It will be illegal to not register with the ACA. Importing goods using IP that has not been registered will be illegal as of January 1, 2023. Said products will be seized, and the importers will face legal action.
First off, anyone who has applied intellectual property rights to imported goods is required to register those rights with the ACA.
The ACA also required importers of goods with IP rights to declare the specifics of those IP rights.
What are the relevant requirements for IP owners and importers?
The owner of the intellectual property rights, his/her authorized agent, or licensee may submit an application for recordal in the required Form ACA1B and should include the required documents:
- Completed ACA1B form;
- Original signed Power of Attorney;
- Copies of the certificate of registration certified by the registering authority indicating the title in the present name of the applicant; and
- Payment of the prescribed fees
As previously mentioned, importers of the pertinent goods bearing the registered intellectual property rights are required to declare the particulars of the IP rights as they apply to those goods. It may be appropriate for an IP owner with established distribution channels to warn current Kenyan importers of their obligation to file the declarations in order to avoid probable sanctions. In this context, the following documents are necessary:
- Completed ACA2B form. See example attached
- Certified copies of registration of IP rights or information furnishing authorship or creation;
- Payment of the prescribed fee
The following documentation must be submitted with an application for the renewal of the recordation on the ACA6B no later than 30 days before the current recordal period expires:
- Copy of certificate stating the status of the registration certified by the registering authority and indicating the title in the name of the applicant;
- A statement indicating any change of ownership, name of the owner, and/or any changes of address of owner or places of manufacture; and
- Payment of prescribed fee
Those who violate these requirements will commit a crime and face the following sanctions:
- Imprisonment up to fifteen years;
- Fines up to five times the retail value of each article implicated in the specific act of dealing; or
- Both imprisonment and the imposition of a fine.
Kenyan authorities took a bold step in enacting the Anti-Counterfeit (Recordation) Regulations to prevent the unauthorized importation of goods relating to intellectual property. Convictions are strengthened by the implementation of harsh criminal penalties for violators. Given the consequences, it is crucial that IP owners and the Kenyan distribution channels they are connected to make sure the Regulations are followed.