Thursday 9 July 2009

Darren Olivier

Letters to Afro Leo

John Syekei (MMC Advocates) informs Afro Leo that "The Kenyan Anti Counterfeit Act comes into force next month. Please be advised that one of the implications of the Act is that any person bringing in pharmaceutical products that bear a resemblance to an existing registered trade mark in Class 5 shall be a counterfeit. It is very good for registered proprietors of trademarks in the pharmaceutical industry." John has also submitted the draft regulations on the Anti-Counterfeit legislation to Afro-IP readers for comment and it can be located here. If you have comments please send them to John here.

Warren Weertman (Bowman Gilfillan) has alerted Afro Leo of the development in the UK that Companies will have to go to court every time they want counterfeit goods to be stopped at the UK's borders following a policy change that could send costs soaring for intellectual property rights holders (Out-law). Afro Leo notices that the draft Kenyan regulations do not yet include fee amounts for using the legislation. In RSA, despite the ease of getting court warrants to seize counterfeit goods, it has always been necessary to take court action to prevent goods from being released. Perhaps we have missed something but the judgment (here) that lead to the change in UK policy seems fair. Afro Leo says, with a smile, that it is good that UK legislation is finally falling in line with African legislation, or is it just HMRC's way of acknowledging the British Lions recent rugby defeat to the Springboks?

Dr Wim Alberts (IP consultant - Bowman Gilfillan) poses the question: Does the [ECJ] L'Oreal case blast Verimark (the RSA case comparative advertising case) away? Thanks to Sara-Jane Pluke (Moore Attorneys) Afro Leo has learnt of IP consultant Hans Muhlberg similar views/questions and some others, in a delightful piece here. Afro Leo notes how legislation in 27 EU member states is distilled into a short judgement by the ECJ to be applied in the UK and inevitably influence legislation in RSA which has followed (but not quite) the Harmonization Directive of the EU. The "not quite" bit makes life very interesting for trade mark practitioner in RSA especially when RSA judges controversially bring constitutional rights eg free speech into the fray.

And, as Kenya is launching its counterfeit legislation the Attorney General in Ghana is becoming very outspoken about the need for proper legislation in that country too. Adam Smith (World Trademark Review) has drawn this report to Afro Leo's attention which includes:

"In the case of Ghana, which is severely hit by the phenomenon, making job creation exceedingly difficult, the Attorney-General and Minister of Justice, Mrs Betty Mould-Iddrisu, Tuesday advocated the establishment of a separate Intellectual Property Office to fight piracy and counterfeit products in the country. "

Darren Olivier

Darren Olivier

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