The Act establishes an Anti-Counterfeit Agency (ACA) whose mandate includes combating counterfeiting, trade and other dealings in counterfeit goods in Kenya and “charging fees for services rendered by it.”
It would appear that save for slight amendments meant to allay the fears of the opponents of the Act, especially on the issue parallel importation of generic medicine, the Act remains the same as the Bill first introduced in parliament on 1st July 2008. Accordingly, in relation to medicine a new (sub) paragraph d was added to the list of actions enumerated in section 2 to give a definition of counterfeiting. The added (sub) paragraph d reads that:
“in relation to medicine, [counterfeiting means] the deliberate and fraudulent mislabelling of medicine with respect to identity or source, whether or not such products have correct ingredients, wrong ingredients, have sufficient active ingredients or have fake packaging.”
In addition, there is a proviso to the effect that “Provided that nothing in this paragraph shall derogate from the existing provisions under the Industrial Property Act.”
The amendments may have worked to secure acceptance of the Bill by the coalition to access to essential medicine and others who had argued for inclusion of the WHO definition of counterfeit medicine in order to distinguish medicine from other counterfeit products. The question is whether the added paragraph and proviso in reality provide a workable guarantee that production or importation of generic medicine is not hindered. For one what is the meaning of the phrase “in relation to medicine”? What is being related to medicine? In any case, if a particular trade mark is counterfeited does it matter whether it is in relation to medicine or any other product to the extent that if it is medicine the court will look up the definition of counterfeiting in subparagraph d and do away with the other definitions in subparagraphs a-c.
The Act can be accessed here.