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Kenya – Update on the Anti-counterfeit Regulations

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The Anti-Counterfeit (Amendment) Regulations, 2021 (Legal Notice no. 117) and the Anti-Counterfeit (Recordation) Regulations, 2021 (Legal Notice no. 118) were jointly published by the Cabinet Secretary for the Ministry of Industrialization, Trade and Enterprise Development on 23rd July 2021. These Regulations pave way for the implementation of the proposed amendments of the Statute Law (Miscellaneous Amendments) Act of 2018, enacted by the Parliament of Kenya to introduce some changes or amendments to various intellectual property legislations including the Anti-Counterfeit Act of 2008 (‘the Act’).

The Regulations provides for the implementation of a formal recordal system, whereby an intellectual property right relating to goods to be imported into Kenya shall be recorded by the owner of the intellectual property with the Anti-Counterfeit Authority (ACA) in a prescribed form and accompanied by payment of prescribed official fees. Upon receipt of the recordal application, the ACA shall notify the applicant of the approval or rejection of the application in writing. If the recordal application approved, it will be valid for a period of 12 months renewable, a month before its expiry date. Official renewal fees are payable.

If there is a change of ownership of a recorded intellectual property right, the new owner shall immediately apply to continue with the existing recordal if the new owner wishes to do so. However, if the new owner does not wish to continue the existing recordal, the ACA must be notified within 30 days of the change. Similarly, the ACA must be notified of any change of name of the applicant.

The Regulations further provides that any person may conduct a search of the Register to establish the particulars of any intellectual property right recorded with the ACA. Intellectual property right owners are encouraged to record their intellectual property rights to assist the ACA to effectively fight against the counterfeit goods trade in Kenya.

The ACA is likely to introduce an online platform to facilitate this recordal process and is expected to make further announcements soon regarding its implementation.

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