role of aca in ip enforcement–gazette notice no. 7270 of 20 july 2018 established the inter-agency...
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1PROMOTING GENUINE!1
ROLE OF ACA IN IP ENFORCEMENT
Presentation by
Dr. John Akoten, PhD
Deputy Director, ARPQA
Anti-Counterfeit Authority
IEA Forum, State of Play of IP in Kenya
Hilton Hotel, Nairobi, Tue 7 May 2019
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1) Introduction
a) Mandate
b) Policy directive
c) Coordination and collaboration
2) Legal framework
3) Achievements
4) Challenges
Outline of Presentation
3PROMOTING GENUINE!3
VisionA Counterfeit-Free Kenya
Mission
Prohibit Counterfeiting thro’ the Promotion and
Enforcement of Intellectual Property Rights
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Introduction
The functions of ACA are to:-
1) Enlighten and inform the public on mattersrelating to counterfeiting;
2) Combat counterfeiting trade and other dealingsin counterfeit goods;
3) Devise and promote training programs oncombating counterfeiting;
4) Coordinate with national, regional orinternational organizations involved incombating counterfeiting;
ACA’s Mandate
5PROMOTING GENUINE!
ACA’s Mandate
5) Advise the govt through the Cabinet Secretary on policies and measures concerning the necessary support, promotion and protection of intellectual property rights as well as the extent of counterfeiting;
6) Carry out inquiries, studies and research into matters relating to counterfeiting and the protection of intellectual property rights;
7) Carry out any other functions prescribed for it under any of the provisions of this Act or under any other written law; and
8) Perform any other duty that may directly or indirectly contribute to the attainment of the foregoing.
6PROMOTING GENUINE!
New Policy DirectiveA Quote from Uhuru’s Speech:Jamhuri Day Speech, 12 Dec 2017
6
• “The selfishness and corruption of some amongst us
have allowed counterfeiters and cartels to flourish at
the expense of local manufacturers. As result some
companies have gravely suffered. It’s time to say that
enough is enough: We must face and defeat these
enemies. To conquer these enemies and boost
manufacturing requires we keep a common vision, and
remain focused; and equally critical, that our workers
must remain in harmony with our employers.”
7PROMOTING GENUINE!
A Quote from Uhuru’s Speech
7
• “To protect our manufacturers and consumers from
fake detergents, fake cosmetics, fake batteries, and fake
kerosene – sham products that endanger the lives of
Kenyans – I have directed that the Kenya Revenue
Authority, and the Kenya Anti-Counterfeit
Authority, destroy counterfeits on seizure. Any public
officers found colluding to frustrate this process, will
be summarily dismissed and prosecuted.” (Jamhuri Day
2017 Presidential Speech).
8PROMOTING GENUINE!
Role of ACA
8
• Based on the broad mandate of ACA, the Authority engages with other key stakeholders to:
– Deal with the supply of counterfeit goods
– Deal with the demand for counterfeit goods
– Coordinate efforts to combat counterfeiting
– Collaborate in combating counterfeiting
• The Authority also plays a key role in the achievement of the Big 4 Agenda - manufacturing,
housing, food security and healthcare.
9PROMOTING GENUINE!
Inter-Agency Coordination
9
• Coordination of multi-agencies
– Section 22(3) of the AC Act designates other LEAs as inspectors for combatting counterfeiting.
– Gazette Notice No. 7270 of 20 July 2018 established the Inter-Agency Anti-Illicit Trade Executive Forum with two working groups.
• Enforcement WG
• Outreach WG – SDT
– Presidential directive – multi-agency enforcement coordination (Wanyama Musiambo)
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Kenya’s Anti-Illicit Trade Coordination
Framework Model
National Anti-Illicit Trade Coordination
Centre (NATCoC)
Anti-Illicit Trade Executive Forum
(Executive Forum)
Enforcement Working Group
(Private sector and law enforcement agencies with
mandate on illicit trade)
Outreach Working Group
(Private sector and law enforcement agencies with
mandate on illicit trade)
Anti-Illicit Trade
Secretariat
11PROMOTING GENUINE!
Regional and International Collaboration
• ACA is also active in regional matters.
• It is collaborating with regional institutions, both in the public and private sectors.
• Regionally:-
– Anti-Counterfeit Network (ACN) Uganda
– Uganda Bureau of Standards
– Fair Competition Commission, Tanzania
– EABC, etc
• Internationally:-
– Interpol, INTA, etc
12PROMOTING GENUINE!
2.Legal Framework
12
• International Law
WTO-TRIPS Agreement
• Regional Laws
Protocol establishing the EAC Common Market (article 43)
EAC Customs Management Act, 2004 (s.219)
EAC Anti-Counterfeit Policy
EAC Anti-Counterfeit Bill
13PROMOTING GENUINE!
Legal Framework…
13
• National Laws (to deal with unfair trade practices)Kenyan Constitution: consumer rights - Art. 46;
IP - Art. 11(2)(c), 40(5), 69(1)(c)Copyright Act, 2001 - KeCoBoIndustrial Property Act, 2001 – KIPITrademarks Act, cap 506 - KIPIPharmacy & Poisons Act, cap 244 – PPBSeed and Plant Varieties Act, cap 326 – KEPHISWeights & Measures Act, cap 513 & Trade
Description Act – W&M Dept
14PROMOTING GENUINE!
Legal Framework…
14
• National Laws (to deal with unfair trade practices)Standards Act, cap 496Customs ActTrade Remedies ActCompetition Act Proceeds of Crime and Anti-Money Laundering
Act Consumer Protection ActAnti-Counterfeit Act, 2008Anti-Counterfeit Regulations, 2010
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Definition of Counterfeiting
15
• S.2 of AC Act: “Counterfeiting” means taking the following actions without the authority of the owner of IPRs subsisting in Kenya in respect of protected goods:–
the manufacture, production, packaging, re-packaging, labelling or making, in Kenya, of any goods whereby those protected goods are imitated in such manner and to such a degree that those other good are identical or substantially similar copies of the protected goods;
The manufacture, producing or making of copies, in Kenya, in violation of an author’s rights or related rights;
– Counterfeit goods: means goods that are the result of counterfeiting and includes any means used for purposes of counterfeiting.
16PROMOTING GENUINE!
Inspectors Under the Anti-Counterfeit Act
16
Two categories of inspectors under the Act:
1. Appointed inspectors - S. 22 (1) empowers the ACA Board to appoint inspectors for purposes of enforcing the provisions of the Act. The Inspectors appointed by the Board have full police powers (s.22 (2) (b)) in the exercise of their duties under the Act.
2. Designated inspectors – (S. 22 (3) In addition to the appointed inspectors, the following are designated as inspectors for purposes of the Act:
17PROMOTING GENUINE!
Designated Inspectors
17
any member of the Anti-Counterfeit Agency Board
any public health inspector
any police officer inspectors appointed under the Standards Act
any authorized customs officer inspectors appointed under the Weights and Measures Act
any trade development officer inspectors appointed under the Copyright Act
any industrial development officer
inspectors appointed under the Food, Drugs and Chemical Substances Act
any trade mark and patent examiner
inspectors appointed under the Pharmacy and Poisons Act
any seed and plant inspector inspectors appointed under the Pest Control Products Act
18PROMOTING GENUINE!
Powers of Inspectors (s.23)
18
• Appointed inspectors have full police powers.
• Power to inspect or search any place, premise, vehicle or person found in these places;
• Power to terminate manufacture, production or making of counterfeit goods;
• Power to seize and detain counterfeit goods;
• Power to seize and detain any tools (machinery, equipment) used in manufacturing, production, making or packaging of those goods.
• May arrest a person without a warrant.
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Offences under the Act (s.32)
19
The Act has criminalized all dealings with counterfeit goods which include the following actions: Have in possession or control, in the course of
trade, counterfeit goods. Manufacture, produce or make in the course of
trade, counterfeit goods; Sell, hire out, barter or exchange counterfeit
goods; Offer or expose for sale, hiring out, barter or
exchange counterfeit goods;
20PROMOTING GENUINE!
Offences…
20
Expose or exhibit for the purposes of trade counterfeit goods;
Distribute for purposes of trade or any other purpose counterfeit goods;
Import into, transit through, transship within or export from Kenya counterfeit goods;
In any other manner, dispose any counterfeit goods in the course of trade.
21PROMOTING GENUINE!
Offences…S32 (h-n)
21
Have in possession or control, in the course of trade, any labels, patches, stickers, etc;
Aids or abets or conspires in the commission of any offence;
Imports into Kenya any goods bearing a trademark or copyright that has not been recorded with ACA;
Import into Kenya any goods (except raw materials) that are unbranded;
Failure to declare the quantity or IPR subsisting in any goods being imported into Kenya;
22PROMOTING GENUINE!
Offences…S32 (h-n)
22
Falsely declare the quantity or IPR subsisting in any goods being imported into Kenya;
Import into, transit through Kenya any labels, etc with a counterfeit mark applied thereto;
23PROMOTING GENUINE!
Penalties under the Act (s. 35)
23
• For a first offender:
A fine of not less than 3 times the retail value of seized goods;
Up to 5 years imprisonment; or both.
• For a second and subsequent offender:
A fine of not less than 5 times the retail value of seized goods;
Up to 15 years imprisonment; or both.
24PROMOTING GENUINE!
Penalties under the Act…
24
• A court will consider the severity of the penalty based on (s. 35 (3)):
1) Any risk to human or animal life, health or safety or danger to property.
2) Conduct of the suspect – supply of truthful information, source of counterfeit goods, identity of persons involved; their whereabouts; channels of distribution, etc.
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3. ACA’s Achievements
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ACA’s Achievements - EnforcementIPR Complaints Received, Investigated & Prosecuted
38
108
206
162
205
185
252
123
85
33
98
202
159
90
148
234
90
68
13
27
36
14
39
41
29
22
35
0 50 100 150 200 250 300
2010/11
2011/12
2012/13
2013/14
2014/15
2015/16
2016/17
2017/18
2018/19 (Q1-2)
Prosecuted
Investigated
IPR Received
27PROMOTING GENUINE!
ACA’s Achievements - EnforcementIPR Complaints Received, Investigated &Prosecuted To-date
0
200
400
600
800
1000
1200
1400
IPR Received Investigated Prosecuted
1364
1122
256
28PROMOTING GENUINE!
ACA’s Achievements - EnforcementValue of Goods Seized & Destroyed (Ksh, mn)
149 167 183211
44
235
99
389
590
113
29 1 22
299
13 16
97
230
100
200
300
400
500
600
700
Seized (Kshs mn)
Destroyed (Kshs, mn)
29PROMOTING GENUINE!
ACA’s Achievements - EnforcementApprox Value of Goods Seized & Destroyed To-date (Ksh, mn)
2,066
612
0
500
1,000
1,500
2,000
2,500
Seized (Kshs mn) Destroyed (Kshs, mn)
30PROMOTING GENUINE!
ACA’s Achievements - EnforcementRRI – multi-agency operations on illicit trade
• The RRI is being led by Mr. Wanyama Musiambo, Deputy Head of Public ServiceThe operation netted over Kshs 8.5 billion worth of illicit goods
Goods worth Kshs 1.5 billion were destroyed in late 2017
31PROMOTING GENUINE!
ACA’s Achievements…Education and Public Awareness
1) Capacity building program
Targeting border or inland institutions
LEAs, judiciary, police, IPR holders (sectoral)
2) Outreach/Awareness program
Consumer outreach – ASK shows, WACD, WIPD,roadshows
Educational outreach – schools, universities
County awareness program
Conferences, seminars, workshops
3) Media coverage
32PROMOTING GENUINE!
Consumer Purchase of Counterfeited Goods (%)
Achievements – Research
70% of consumers
purchased counterfeit
goods.
19% of these
purchased counterfeit
goods knowingly,
while 81% purchased
counterfeit goods
unknowingly.
33PROMOTING GENUINE!
Reasons for Purchasing Counterfeited Goods
Achievements – Research…
34PROMOTING GENUINE!
79.7
64.1 62.5
2.7
66.61
9.63 8.142.16
0
10
20
30
40
50
60
70
80
90
Electronics Pharmaceuticaland cosmetics
Alcohol, beverage& cigarettes
Stationery
%
o
f
c
o
n
s
u
m
e
r
s
2010
2014
Most Counterfeited Goods – Consumers Perspective (%)
Achievements – Research…
35PROMOTING GENUINE!
Level of Counterfeiting and Public Awareness (%)
Achievements – Research…
0
10
20
30
40
50
60
70
Y 2015 Y 2016 Y 2017
22.9 23.86
15.6
51.35 52.39
61.68
Level of counterfeiting
Level of public awareness
36PROMOTING GENUINE!
5. Challenges
1) Long and porous borders
2) Corruption and unethical behaviour
3) Globalization and Liberalization
4) 3D technology and e-commerce – some websites are hosted outside the country
5) Weak inter-agency collaboration
6) Inadequate cooperation by IPR owners
7) Inadequate training of ACA inspectors
37PROMOTING GENUINE!
Challenges
8) Inadequate understanding of IP issues by some LEAs
9) Storage and destruction of counterfeit goods
10) Limited knowledge by public on issues of counterfeiting/illicit trade
11) High poverty levels, consumers’ attitude & ignorance
12) High security risks to operational staff
38PROMOTING GENUINE!
Our Offices
HQS , JKIA & ICD NBI: National Water Plaza, 3rd Floor, Dunga Road, Off Bunyala Road, P.O. Box 47771 – 00100 NairobiTel: 020-2280 000; 0717-430-640; 0733-951-375
Mombasa Office: Mombasa Trade Centre, Nkrumah RoadP.O. Box 41132-80100 MombasaTel: 041- 2220709
Kisumu Office: Kisumu Alpha House, 4th Floor, Room 47,P.O. Box 894 - 40100 KisumuTel: 057 - 2029929
Eldoret Office: Kiptagich Building, 3rd Floor, Uganda Road,Tel: 053 - 2030558
www.aca.go.ke | info@aca.go.ke | Twitter: @ACAkenya | Facebook: ACA Kenya
39PROMOTING GENUINE!
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