Kenya: Roll out of the Anti-Counterfeit Authority Integrated Management System
On 23rd July 2021, the Anti-counterfeit (Amendment) Regulations, 2021 (“Amendment Regulations”) and the Anti-Counterfeit (Recordation) Regulations, 2021 (“the Recordation Regulations”) were published under Legal Notice number 117 of 2021 and 118 of 2021 respectively. The Amendment Regulations and the Recordation Regulations give effect to the Statute Law (Miscellaneous Amendments) Act Number 18 of 2018 which amended the Anti-Counterfeit Act, Number 13 of 2008 by providing for the mandatory recordation of intellectual property rights with the Anti-Counterfeit Authority (“ACA”).
The Amendment Regulations provide for the admission of agents to practice before the ACA. The agents shall be required to apply for admission and maintain their admission through renewals. Only admitted agents will be able to represent IP right owners before the ACA.
On the other hand, the Recordation Regulations provide for the mandatory recordation, by the IP right owner, of IP Rights relating to goods to be imported into Kenya. In addition, the Recordation Regulations also provide that any person, other than the IP Right owner, importing any goods into Kenya should notify the ACA of the particulars of those goods. However, recordation and/or notification is not required for the importation of raw material, that is, items used as ingredients in the manufacture of goods. Consequently, the ACA shall have the power to seize and destroy any goods imported into Kenya, which do not bear the anti-counterfeit security device.
A recordation shall remain in force for a period of one year from the date of approval of the application for recordation or the current registration period of the IP Right, whichever is shorter. An application for the renewal of a recordal should be filed at least thirty (30) days before its expiry.
The Recordation Regulations also outline the fees and provide the forms to be used for an initial recordal, a renewal application, submission of particulars of imported goods and application for recording changes in name of proprietor or ownership of the IP Right.
To implement the Regulations, the ACA has been working on the ACA Integrated Management System (“AIMS”) an online tool to facilitate the recordation process. The ACA has now concluded the migration to the AIMS and is currently finalising the migration from the test environment to the live environment.
It is thus expected that the ACA AIMS online tool will be rolled out by early March 2022. Once the system goes live, registration of agents and IP recordation services will be the first to be effected. Once IP rights are recorded, the ACA will detain, seize or exclude infringing goods and immediately notify the IP Right owner or his agent if it encounters a suspect shipment.
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