Wrestling with Counterfeits in Africa and the Position of Unregistered Trademarks

For many African countries and Africa as a whole, one could easily say that the fate of fair competition and Intellectual Property (IP) rights protection in trade development is largely dependent on the fight against counterfeits.

This stream of consciousness comes in the wake of reports of the high volumes of counterfeit goods in Africa. According to a 2017 joint report from Organization for Economic Cooperation and Development (OECD) and the European Intellectual Property Office (EUIPO), 3.3% of world trade is in fake goods, while the World Health Organization (WHO) reports that 42% of fake drugs reported from 2013 to 2017 were from Africa. The International Chamber of Commerce puts the nail on it by projecting that the value in the rise of counterfeits in Africa by 2022 could be as high as $991 billion. All these facts point to the issue that counterfeit goods in African countries are not just cutting down the revenue of businesses but are also threatening the sustenance and development of IP rights.
Fortunately, in Kenya, the government took a decisive step in 2008 to pass into law the maiden Anti-Counterfeit Act and IP right owners, both local and foreign would be thankful for this brave step. It is because of this important piece of legislation and the case of Republic v Anti Counterfeit Agency and Caroline Mangala t/a Hair Works Salon , that the war against counterfeits in Kenya has gotten a recent boost.

The Facts of the Case
Caroline Mangala, trading in the name and style of “Hair Works Salon” (Applicant) has a shop in Nairobi, where she traded in beauty and cosmetic products. These products were counterfeits of the Makari De Suisse, a brand created and well-known with the Complainant (JO Global Venture Limited) in this case. The Respondent is the Anti-Counterfeiting Agency established under the Counterfeit Act to investigate counterfeiting activities in Kenya and prosecute the same. The Complainant had lodged a complaint with the Agency about the counterfeit goods being sold by the Applicant and relying on the information, the officers from the Agency conducted a raid and took inventory of the seized goods.

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Published in IPR Magazine