Monday, 25 August 2008

New Merchandise Marks Regulations 2008 for Tanzania - "A Giant Step Against Counterfeiting and Piracy"

This good news headline comes compliments of African trademark specialist Natalia Pereira who forwarded Afro Leo, Mkono's newsflash (August Mrema) summarising the regulations (see below) and concluding that the legislation is "A Giant Step Against Counterfeiting and Piracy" in the region (see earlier post highlighting the problem: "Houston, we have a problem" here). The Regulations were published in June and are now in force, according to the newsflash.

The salient features of the Regulations are as follows:

"a) The Regulations have established a task force known as Interdepartmental Task Force. The duties of the Task Force are to oversee the implementation of the Act and the Regulations. The Members of the Task Force shall be appointed by the Minister from the Attorney General Chambers, Tanzania Revenue Authority, Tanzania Police Force, Tanzania Bureau of Standards, Food and Drugs Authority and another representative from Public Officer (sic).

b) The Regulations have given various powers to the Chief Inspector appointed under the Act. For instance the Inspector has been empowered to conduct investigations on any breach of the provisions of the Act, to detain or seize any goods which he reasonably suspects to be counterfeits. He may also conduct a public inquiry in respect of any serious breach of the provisions of the Act or Regulations. Furthermore, the Chief Inspector has also been empowered to conduct summary proceedings against any suspects upon receiving a complaint from any person who has reasonable grounds to suspect an importation or exportation of counterfeit goods or pirated goods in violation of his IP rights.

c) The Regulations also provide for the establishment of Zonal offices in various places of the country to combat counterfeiting.

d) Under the Regulations an appeal against the final decision of Chief Inspector shall lie to the Fair Competition Tribunal, a quasi Tribunal Established under the Fair Competition Act 2003 and chaired by a judge of the High court

e) The Regulations have prescribed measure to be taken at the border by empowering the Customs Officials to seize any goods imported or exported which are suspected to be counterfeits products or any goods which are suspected to violate the IP rights of any person that are recognised under the Act or any other written law.

f) The Regulations have also provided for the possibility of obtaining ex-parte search orders (Anton Piller Orders). The search order can be obtained from any District Court by the Chief Inspector or any IP right holder authorising the entering and searching of any premises suspected to contain counterfeit goods.

g) The Regulations also contain provisions for seizure, detention, storage and disposition of counterfeit goods.

h) The Regulations have also provided for application for obtaining freezing orders (Mareva injunctions) from the Court to enable the Applicant to have the Respondent’s asset frozen so that they cannot be dissipated from beyond the jurisdiction of a court to frustrate the final order or judgement.

i) The Regulations have also prescribed the fees and fines payable for offences committed against the Act

j) The regulations have also provide for a mechanism under which suspected offenders may be committed to the Director of Public Prosecution for criminal prosecution for importing, exporting or dealing in counterfeit goods which endanger health and public health of the inhabitants of Tanzania

k) The Regulations also contain a Scheduled with various prescribed forms which may be used to commence an application either before the Chief Inspector or Custom officials."

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