On 1 August 2011, the Kenya Standard newspaper reported that the Kenya Shippers Council (KSC) have a cunning plan to reduce to three days, the time taken to clear imported goods through the Port of Mombasa. Also known as Kilindini, that port serves land-locked neighbours as well as Kenya and is second only to Durban on the east African range. It is actually my home town and the news snippet conjured back the sun, ships and stevedores, the cargoes, cranes and customs sheds among which I sweated before joining the law. What has all that got to do with intellectual property, I wondered?
The IP connection is there nevertheless and in a case where it applies, it will defeat the best efforts of the KSC to get an incoming consignment from ship to consignee in three days.
The Anti-Counterfeit Act of Kenya was officially brought into force on 7 July 2009. It has not met with nationwide approval, because many believe that it impedes access to affordable medicines for malaria, HIV/AIDS and their deadly sisters. Despite such opposition the Act is being actively enforced by the Anti-Counterfeit Agency (ACA). ACA functions under the aegis of the Ministry of Industrialization, as does the Kenya Industrial Property Institute. The primary purpose of the Act is to prohibit trade in counterfeit goods. Counterfeiting is defined as performing any of a range of unlawful acts, in contravention of intellectual property rights extant under the Trade Marks Act, the Industrial Property Act (relating to patents, utility models and industrial designs), the Copyright Act or the Seeds and Plant Varieties Act.
Whilst the mainstream functions of the Anti-Counterfeit Act are performed by inspectors within the ACA, section 34 gives a parallel entitlement to the proprietor of an intellectual property right to apply to the Commissioner, an official responsible under the Kenya Revenue Authority Act to administer and enforce the customs laws among others.
If the applicant has valid grounds for suspecting that the importation of counterfeit goods may take place, he may request the Commissioner to seize and detain all suspected counterfeit goods featuring, bearing, embodying or incorporating the subject matter of that intellectual property right or to which the subject matter of that right has been applied, imported into or entering Kenya during the period stated in the application. The application should be supported with evidence of the applicant's title, a specimen of the goods and other information sufficient for the Commissioner to consider it.
If satisfied, the Commissioner may order the seizure and detention of the goods stipulated in the application, under the East African Community Customs Management Act 2004 which will control the operation. The latter Act provides among other things, for notices to owners; retention of seized items pending court proceedings; and for their release. But once the Anti-Counterfeit Act and the Commissioner have been invoked, the three-day KSC time scale will have ceased to apply.
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