The World Intellectual Property Day is observed annually on April 26. Since the year 2000, the day is celebrated to raise awareness of the impact patents, copyright, trademarks and design have on our daily life. Intellectual Property (IP) rights are used to encourage innovation and creativity in societies across the globe.
This year’s theme is “IP and Youth: Innovating for a Better Future”. Across the globe, young people are stepping up to innovation challenges, using their energy and ingenuity, their curiosity and creativity to steer a course towards a better future.
On this day, the Anti-Counterfeit Authority published in MyGov a public notice on the Commencement of recordation of intellectual property rights with effect of 1st July, 2022. Recordation is the process of collecting information from the intellectual property owners/holders about their registered trademarks, copyrights, or any other protected intellectual property right, and then entering that information into an electronic database for all goods to be imported into the country. This information is then used by border protection officers to verify the recordation status of the goods to be imported.
Owners of registered industrial property rights are expected to record their rights with the ACA to prevent importation into Kenya of infringing foreign goods. The ACA will then use the information to actively monitor shipments and any imports of violating items which shall be subjected to seizure and forfeiture/prosecution in accordance with the provisions of the Anti-Counterfeit Act.
Recordation of Intellectual Property Rights function was introduced by subsection 34B titled ‘trademarks’ in the Statute Law (Miscellaneous Amendments) Act, 2018 that was gazetted under Kenya gazette Supplement No. 161 on January 4, 2019. This section enhances a previously existing mandate under the Anti-Counterfeit regulations 2010, Regulation 15(2), which mandates the Executive Director to maintain a database of all particulars of intellectual property submitted and to make this database available for search. The only things exempted from recordation are locally manufactured goods, raw materials and transit goods.
The Act makes it an offence for any person to import into Kenya, any goods that have not been recorded with the Agency. It is also an offence to import into Kenya in the course of trade goods or items except unbranded raw materials.
To apply for recordation, an applicant should follow the prescribed procedure and pay application fees. The fees are US$90 (KES. 9,000) for the first class and US$10 (KES 1,000) for each subsequent class. The recordation of a trademark 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 trademark (IPR), whichever is shorter.
The call by ACA is noble and well intentioned. However, it introduces additional procedures to businesses and in effect, it makes it harder for businesses to operate in Kenya. The registration is unnecessary as KIPI and other IP databases can be linked with ACA to enable them implement their mandate without additional registration procedures.