Anti-Counterfeit Act

This Act may be cited as the Anti-Counterfeit Act.

Defines actions including the manufacture, production, packaging, re-packaging, labelling or making of any goods in Kenya that imitate protected goods so they are identical or substantially similar copies.

The Board must appoint an Executive Director, set their terms and conditions, and the Executive Director must meet specified qualifications and perform duties including serving as ex officio non-voting Board member, secretary to the Board, day-to-day management, supervision of inspectors, and implementing the Act.

The Board may appoint officers, agents and other staff of the Authority.

The Authority's common seal must be kept in the custody of the Executive Director or another person the Board directs, may only be used by Board order, and its affixing must be authenticated by signatures of the Chairperson and the Executive Director (or a nominated Board member in their absence).

The Board may, by resolution, delegate any of its powers or the performance of its functions or duties to a committee or to any member, officer, employee or agent of the Board.

Members, officers, staff and agents acting bona fide for the Authority are protected from personal liability; the Authority must pay their court-incurred expenses if a court finds the acts were bona fide, unless recovered in the suit.

The Authority remains liable to pay compensation or damages to any person for injury to that person, their property or interests caused by the exercise of powers under this Act or any other written law, or by the (wholly or partially) failure of works.

A person who suffers damage or loss from wrongful seizure, removal or detention of alleged counterfeit goods may claim compensation against the complainant, but compensation is payable only where the complaint was false, negligent or laid in bad faith; claims against the Authority are barred after 12 months from the date of seizure, removal or detention.

Creates the Anti-Counterfeit Authority.

The headquarters of the Authority shall be in Nairobi.

The Authority must enlighten and inform the public on matters relating to counterfeiting.

Section 6 lists who sits on the Authority's Board (specified office-holders and representatives) and sets a qualification rule: a person does not qualify to be appointed Chairperson unless they hold a law or science degree from a recognised institution and have at least five years' working experience in trade, industry or intellectual property.

The Board must formulate policies for the organisation, management and implementation of the Authority's objects, with approval of the Cabinet Secretary.

The Board may regulate its own procedure except as provided in the Schedule.

The members of the Board are to be paid remuneration, fees, allowances and disbursements for expenses, subject to approval by the Cabinet Secretary responsible for finance and on the Board's recommendation.

The Authority's funds are the moneys appropriated by Parliament for the purposes of the Authority.

The Authority's financial year is the twelve-month period ending on 30 June each year.

The Board must prepare estimates of the Authority’s revenue and expenditure at least three months before each financial year, approve them before the year starts, submit them to the Cabinet Secretary for approval, and after the Cabinet Secretary’s approval the Board may not increase the estimates without the Cabinet Secretary’s consent.

The Board must keep proper books and records of the Authority's income, expenditure, assets and liabilities; the Auditor-General must audit and report on the Authority's accounts in accordance with the Public Audit Act (Cap. 412B).

The Board may invest the Authority's funds in certain securities (including those approved by the Cabinet Secretary for finance) and may place surplus moneys on deposit with banks subject to the Cabinet Secretary's approval.

The Board must appoint inspectors and issue them certificates; inspectors hold office on terms set by the Board and have full police powers; the Board may designate, amend or withdraw inspectors.

Inspectors have broad powers to enter, inspect, search, seize goods and tools, question persons, arrest without warrant subject to conditions, and investigate offences related to counterfeiting; persons need not answer questions that might incriminate them.

Section 24 lists several offences relating to inspectors and seals: wilfully obstructing an inspector in the discharge of his duties; wilfully failing to comply with a requirement properly made by an inspector; without reasonable cause failing to give assistance or information reasonably required by an inspector; making false statements when giving such information; breaking, damaging or tampering with a seal applied by an inspector; and removing goods or items sealed, sealed-off, detained or stored under this Act.

Inspectors must seal, identify, categorize seized goods, prepare an inventory in quadruplicate and obtain certification; provide inventory copies within five working days; remove or secure goods; inspector may require additional information from a complainant; an aggrieved person may apply to court for return of goods; the court may grant or refuse relief and make orders including damages and costs.

Section 26 sets out rules on evidence and legal presumptions in proceedings about counterfeit goods, including availability of inspector-held documentary evidence to complainants on application; inspector statements as prima facie evidence; presumptions that a complainant is the owner or exclusive licensee until proved otherwise; and presumptions that a trader found with more than private-use quantity possessed goods for trade until the contrary is proved.

Court orders may require return, release, destruction or other disposal of seized goods; counterfeit goods are to be destroyed at the expense of the local manufacturer or importer or reshipped. Upon application, seized goods must be made available for inspection within five working days; the Executive Director may provide samples within five working days; an inspector may take samples for testing.

Rules for return, forfeiture and destruction of seized goods: goods seized under section 23 are to be returned to the person they were seized from within three months unless charges are filed; if prosecuted and convicted the court may order forfeiture to the Government for destruction; the court must order destruction or other disposal of goods that appear counterfeit; an inspector may apply for forfeiture where the accused absconds or goods are unclaimed.

The Board may designate places as counterfeit goods depots (by notice in the Gazette), and the Board shall appoint a fit and proper person to be in charge of a counterfeit goods depot.

The Director of Public Prosecutions may appoint public prosecutors for cases under this Act; the Board is deemed to be a public authority for specified Criminal Procedure Code purposes.

It is an offence for any person who is not an inspector to pretend to act as an inspector (impersonation).

It is an offence to have in his possession or control in the course of trade any counterfeit goods.

Holders of IP rights (and their successors, licensees or agents) and consumers may lay complaints with the Executive Director about suspected offences involving protected goods; complainants must provide prescribed information satisfying the Executive Director; inspectors and the Executive Director may also take steps on their own initiative.

Customs authorities may seize and detain specified counterfeit goods imported into or entering Kenya after an application is granted; authorized customs officers or inspectors must seize alleged counterfeit goods; persons wrongfully affected may claim compensation where the application was false, negligent or in bad faith.

The Executive Director may, when satisfied an offence carrying a fine or forfeiture has been committed, order payment of a sum not exceeding the fine and may order forfeiture; this power is exercisable only if the person admits the offence in the prescribed form and requests compounding, and the order must be in writing with specified contents and is final and enforceable; the person is not liable to further prosecution for the offence.

Trademarks for goods to be imported into Kenya must be recorded with the Agency; recordation is effective on approval, lasts one year or the current registration period (whichever is shorter), owners must apply for renewal not later than 30 days before expiry, the Agency issues an anti-counterfeit certification mark for compliant imports, and may seize and destroy imported goods found in Kenya without the security device.

Section 35 sets penalties for dealing in counterfeit goods, including imprisonment and fines varying by conviction count; courts may order forfeiture of monetary benefits to the Agency.

Instruments executed by, on behalf of, or in favour of the Authority are exempt from stamp duty that they would otherwise be liable to pay.

The Cabinet Secretary may make regulations to carry the Act into effect, including prescribing matters, inventories, management and control of counterfeit goods depots, disposal procedures, and other necessary matters.