|
|
The Anti – Counterfeit Bill, 2007
Kenya is in the process of coming up with its first Anti Counterfeit legislation. While we commend the stellar effort and progress in coming up with the draft bill it can be argued without much consternation that the Bill would benefit from some improvement. The Bill is not a felicitously crafted document.
A lot of detail has gone to describe the management and financial framework under which the agency will operate, funding and spending, but has left out or vaguely touched on its enforcement and implementation which is its core function.
Counterfeiting has been defined in the Bill to include “the manufacture, production or making, whether in Kenya or elsewhere, the subject matter of intellectual property” Intellectual Property has been defined in the Bill to include “any right protected under the Industrial Property Act’. The Bill as drafted seeks to legislate against generic drugs. Our thoughts on this are that the legislation against generic medicenes would be contrary to existing legislation that allows for it. Historically, Kenya has allowed for generic drugs as a counter to the high cost of treating HIV Aids.
The draft Bill places more emphasis on manufacturing and less emphasis on importing and trading. Importation and trading are more common means of facilitation of illegal trade in counterfeits.
The deterrent measures are not adequate. The penalties are not stiff enough to discourage this activity. Where an option of jail or fine exists, the former is chosen and the figure pales in comparison to the benefit the culprit has enjoyed so far until caught. Illegal trade in counterfeits is a multi billion shilling industry and still financial and jail term penalties need to be employed to curb the practice.
Members of the Board of the Authority set up to deal with Counterfeit matters are mainly drawn from the multiple government parastatals with hardly any private sector and business representation with the exception of KAM which is not all inclusive. It would be preferable to have some commercial professionals who are well versed with intellectual property on a day to day basis – specialized intellectual property lawyers, marketers and brand consultants.
Details are given on how the Board handles its financial aspects rather than its core function – combating counterfeits. It should have powers to investigate and penalize to an extent some offences. Otherwise if all cases will be forwarded through the AG to the courts – justice will be delayed as this arm is already over stretched. For instance the Customs Act allows the commissioner to impose fines and penalties in addition to the goods being forfeited.Seizure of merchandise is a very sensitive issue and needs very specific guidelines. The common practice is that only part of the contraband gets seized. Inspectors should have power to track down where merchandise has been sold through audit of books and even these persons penalized.
|
|
 |
