FALSE, FORGED & PHONEY: FIGHTING THE FAKES (PART 2)

In this second part of FALSE, FORGED & PHONEY: THE COUNTERFEIT CONUNDRUM the focus will be on the efforts that have been put in place to combat counterfeits in Kenya. In the previous article, (https://www.linkedin.com/pulse/false-forged-phoney-counterfeit-conundrum-part-1-john-macharia/ ) it was explicitly captured that counterfeiting is a serious national and international problem with far reaching effects. In addition, the cost and the negative impact of Counterfeiting to governments and entities that are running legitimate industries are exceedingly high. Governments and companies have suffered great financial loss and the general population has been exposed to substandard goods that may be harmful to their health and general wellbeing.

At its core, the fight against counterfeits is a fight to protect intellectual property rights and innovation. This is a fight that can be won. There are various measures that have been put in place to combat counterfeiting. These involve the participation of both the private and the public sector.

The fight against counterfeits in Kenya

The Government of Kenya is actively participating in the fight against counterfeits by establishing a government agency known as the Anti Counterfeit Agency with specified functions.

The Anti Counterfeit Agency (ACA)

This government agency is established under section 3 of the Anti-Counterfeit Act (No. 13 of 2008) and is tasked with prohibiting the trade in counterfeit goods through the Enforcement of the Anti-Counterfeit Act. Under Section 5 of the said Act, the functions of the ACA are to;

a)     enlighten and inform the public on matters relating to counterfeiting;

b)     combat counterfeiting, trade and other dealings in counterfeit goods in Kenya in accordance with the Act;

c)     devise and promote training programs on combating counterfeiting;

d)    co-ordinate with national, regional or international organizations involved in combating counterfeiting;

e)     carry out any other functions prescribed for it under any of the provisions of the Act or under any other written law; and

f)      perform any other duty that may directly or indirectly contribute to the attainment of the foregoing

Since the enactment of the Anti-Counterfeit Act in 2008 and in keeping with Sections 3 and 5 of the said Act, the ACA has taken the lead in fighting counterfeiting in Kenya. ACA has spearheaded raids and charging offenders in court within the country in order to deal with the menace of counterfeiting.

For instance on 21st March 2019, the ACA was able to conduct a raid in Runyenjes within Embu County where a factory was manufacturing counterfeit baking flour. This matter arose when Uzuri Foods K. Limited complained to the ACA that counterfeiters were fraudulently using their trade mark, “Golden Ngano Flour” to sell the illicit flour by illegally manufacturing the flour without their express authority. Following the raid, 25 tons of baking flour was confiscated. 2 people, including the owner of the factory, were arrested and charged. (For more on this, click on the follow link; https://www.aca.go.ke/media-center/news-and-events/152-aca-inspectors-raid-counterfeit-home-baking-flour-manufacturing-factory-in-runyenjes-embu-county).

The ACA recently unveiled and is implementing a 2017 to 2022 Strategic Plan which is grounded on the Kenya Vision 2030 Blueprint; which is guided by the Constitution of Kenya 2010. The plan focuses on stakeholder participation, good governance and a professional approach to doing business. In addition, the plan provides an institutional framework which expounds and builds on the Agency’s mandate in relation to the economy.

In its fight against counterfeiting, The ACA has partnered with public agencies, private organisations and international agencies and organisations. Inter-agency partnerships are key as they not only ensure that Intellectual property rights are promoted and enforced, but they also bring about improved communication and information flow and sharing. In addition, the partnerships avoid overlap in activities and through this, enforcement gaps can be identified and dealt with. Local partnerships with government agencies include;

  • the State Law Office;
  • Kenya Bureau of Standards;
  • Kenya Revenue Authority;
  • Kenya Industrial Property Institute; and
  • Kenya Copyright Board

In order to enforce the law, ACA has partnered with the Kenya Police Service. The Kenya Police Service plays an integral role as they actively participate in the investigation and arrest of counterfeit traders in Kenya. Internationally, ACA has partnered with INTERPOL to fight the menace.

With regard to private institutions, ACA has partnered with private companies in order to endure that goods bearing the trade marks of the entities are protected. By way of example, in February 2019, ACA together with mobile phone manufacturer, Samsung, jointly conducted a raid with the aim of removing counterfeit mobile phones within the Nairobi Central Business District. After the raid, one Mr Peter Mutula, a Brand Protection Expert for Samsung, stated that the raid was aimed at protecting the consumer against the illicit trade of the counterfeit phones and this presented a win for the consumers, Samsung and other manufacturers of mobile phones and the government. (Please follow the link for more on this; http://www.kassfm.co.ke/home/2019/02/26/anti-counterfeit-authority-and-samsung-conduct-raid-on-counterfeit-phones-in-nairobi-cbd/)

In addition, ACA has partnered with lobby and/or advocacy groups such as the Kenya Association of Manufacturers (KAM) who lobby on behalf of Kenya Manufacturers (they are direct beneficiaries of a successful fight against counterfeiting) and Consumer Federation of Kenya (who lobby on behalf of the end consumer of such products). Internationally, the ACA has partnered with international instructions such as the

·        Regional Intelligence Liaison Offices (RILO) Eastern and Southern Africa,

·        Africa Region Intellectual property Organization (ARIPO),

·        Business Action to Stop Counterfeiting and Piracy (BASCAP) and

·        World Intellectual Property Organization (WIPO)

As business is being conducted in this digital age, the ACA has roped in the media and social media. Such partnerships are aimed at educating the public on their mandate as well as the dangers of the purchase and use of counterfeit goods.

Challenges the ACA faces

1.     Corruption

Corruption is a major stumbling block towards the fight against counterfeits. In the recent past, officers from the Kenya Bureau of Standards (KEBS) and the Kenya Revenue Authority (KRA) were arrested following investigations into the importing of contraband and contaminated goods. Importers are also culpable as they have been known compromised officials of these agencies to allow these counterfeit goods enter the country.

As a measure to stem the problem, ACA together with other government agencies need to steer away from any direction that compromises the enforcement roles of ACA and band together to support the efforts made to combat the trade in counterfeits.

2.     The Authority is understaffed

According to the Deputy Director in charge of enforcement and legal services, one John Adera, the ACA is understaffed (see https://www.aljazeera.com/ajimpact/fake-cosmetics-china-squeeze-kenyan-producers-officials-190606190938065.html). This presents a real challenge in the enforcement measures that the ACA has put in place as skilled personnel is hard to come by.

This can be solved by a deliberate action to train persons who would actively participate in anti-counterfeit enforcement measures. ACA should also offer competitive remuneration to entice skilled persons to join the fight.

3.     The Authority suffers from a lack of resources

As a state run agency, ACA has to constantly rely on allocations from the central government. This not only exposes the agency to bureaucratic processes, it also means that the agency has to rely on the limited resources at the disposal of the government. Since the fight against counterfeits is a countrywide fight, ACA suffers as the resources at their disposal are stretched and not sufficient to effectively deal with the counterfeit menace.

ACA, the central government and the stakeholders in the manufacturing and retail sectors and other relevant players need to figure out a way to empower the ACA by bolstering its resources and seeking ways to increase allocations to the ACA.

4.     Lack of awareness

Very few Kenyans are able to tell between a fake and original product. Further, Kenyans are also unaware of the adverse effects these counterfeit products affect the nation’s economy or even their well-being. ACA should spearhead awareness campaigns that are geared towards educating the masses and teaching about the importance of buying and using original products as this will stimulate the manufacturing and retail industries.

Conclusion

It should be noted that the fight against the trade of counterfeit goods is geared towards protecting the consumer and thus this is a war that must be won.  It will bring about great benefits to economies and to the members of society. The fight will always require unity and collaborative effort among those involved and by doing so, our manufacturers, economies, and the public in general shall be protected.

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