The Anti-Counterfeit Regulations, 2010

Legal Notice 126 of 2010

This is the version of this Legal Notice as it was from 26 August 2010 to 29 July 2021. Read the latest available version.

Citation

Legal Notice 126 of 2010

Primary work

Anti-Counterfeit Act

Date

Language

English

Type

Legal Notice

Publication

Download PDF (18.6 MB)

ANTI-COUNTERFEIT ACT

THE ANTI-COUNTERFEIT REGULATIONS, 2010

LEGAL NOTICE 126 OF 2010

Published in Kenya Gazette Vol. CXII—No. 85 on 26 August 2010
Commenced on 26 August 2010

1. Citation

These Regulations may be cited as the Anti-Counterfeit Regulations, 2010.

2. Interpretation

In these Regulations, unless the context otherwise requires—"Act" means the Anti-Counterfeit Act (Cap. 130A);"agent" means a person duly appointed to act on behalf of an intellectual property right owner, and includes a licensee;"application" means an application made to the Executive Director in respect of any seized goods or to the Commissioner in respect of suspect counterfeit goods under the Act;"approved laboratory" means a testing or analysis facility approved by the Board and published by the Minister in the Gazette;"batch" means the total number of identical items seized by an inspector under the Act;"Board" means the Board of the Agency established under section 6 of the Act;"certificate of authority" means a certificate issued by the Board to an inspector under section 22 of the Act;"copies" means certified copies of statements or any documentary evidence issued under the Act or these Regulations;"Executive Director" means the Executive Director of the Agency appointed under section 10 of the Act;"inventory" means a record of goods seized by an inspector under the Act; and"registration certificate" means a certificate relating to protection of intellectual property rights issued under any written law.

3. Powers of the Board

The Board shall be responsible to the Minister for all its powers, duties and functions under the Act.

4. Term of office of the Executive Director

The Executive Director shall hold office for a period of three years, and shall be eligible for re-appointment for one further term.

5. Appointment of inspectors

(1)The Board shall issue a Certificate of Authority in Form ACA 1 set out in the First Schedule, to an inspector appointed under section 22 of the Act.

(2)An inspector shall, during the performance of his duties, produce the Certificate of Authority for the purpose of identification.

6. Designated inspectors

(1)A designated inspector under section 22(3) of the Act shall operate under the instruction and direction of his respective institution.

(2)The institutions under which the designated inspectors operate, shall report to the Agency, concerning all matters relating to counterfeit goods, on a monthly basis.

7. Powers of inspectors

(1)An inspector may in the performance of his duties require a person, dealing in goods which are suspected to be counterfeit goods, to provide sufficient labour for the proper and expeditious handling of goods or any tools under the Act.

(2)Where a person, dealing in goods which are suspected to be counterfeit goods suspect goods fails to provide sufficient labour for the proper and expeditious handling of the goods or any tools, the inspector may hire such labour as is reasonably necessary at the expense of that person.

8. Inventory of seized goods

(1)An inspector shall record any goods or tools seized in accordance with the Act, in Form ACA 2 set out in the First Schedule.

(2)Where a person from whom goods have been seized declines to sign the Form referred to in sub-rule (1) as required, the inspector shall make a note to that effect on the form.

9. Application for copies of statements

(1)A complainant wishing to obtain copies of a statement or documentary evidence procured by an inspector under section 26(1) of the Act, shall apply to the Executive Director in Form ACA 3 set out in the First Schedule.

(2)An application under paragraph (1) shall be accompanied by—

(a)documentary proof that the applicant is the complainant;

(b)an affidavit stating that the copies obtained shall be used for only the purpose indicated on the application form; and

(c)the fee specified in the Second Schedule.

10. Application for inspection of seized goods

(1)A person wishing to inspect, goods seized under section 27(2) of the Act, shall apply to the Executive Director in Form ACA 4 set out in the First Schedule.

(2)The application under paragraph (1) shall be accompanied by fee specified in the Second Schedule.

11. Application for samples

(1)A person who wishes to obtain samples of goods seized for testing or analysis under section 27(3) of the Act, shall apply in Form ACA 5 set out in the First Schedule.

(2)The application under paragraph (1) shall be accompanied by fee specified in the Second Schedule.

12. Taking of samples by an inspector

(1)For the purpose of obtaining a sample from goods seized under section 27(4) of the Act, an inspector shall select the sample from the batch of the goods seized.

(2)An inspector shall select a sample of the goods seized and make a record of the sample taken in Form ACA 6 set out in the First Schedule.

(3)The sample obtained under this regulation may be submitted to an approved laboratory for testing or analysis in Form ACA 7 set out in the First Schedule.

13. Laying a complaint

(1)An intellectual property right owner or his agent who wishes to lay a complaint to the Executive Director under section 33(2) of the Act shall lay a complaint in Form ACA 8 set out in the First Schedule.

(2)The complaint under paragraph (1) of this regulation shall be accompanied by—

(a)the fee specified in the Second Schedule;

(b)an affidavit sworn by the complainant or his agent attaching the registration certificate and or any other relevant document in support of the complaint; and

(c)an indemnity in Form ACA 9 set out in the First Schedule, signed by the complainant indemnifying the Agency from any claim for wrongful seizure, removal or detention of alleged counterfeit goods.

14. Application to the Commissioner to seize suspect goods

(1)An intellectual property right owner (or his agent) who wishes, to have suspected counterfeit goods seized by the Commissioner, under section 34(1) shall apply in Form ACA 10 set out in the First Schedule.

(2)The application under paragraph (1) shall be accompanied by—

(a)the fee specified in the Second Schedule;

(b)an affidavit sworn by the complainant attaching the registration certificate or any other relevant document in support of the application; and

(c)an indemnity in the Form ACA 11 set out in the First Schedule signed by the complainant indemnifying the Customs Authority from any claim made for any wrongful seizure, removal or detention of alleged counterfeit goods.

15. Submission of particulars

(1)An intellectual property right owner or his agent may submit particulars of the intellectual property right to the Agency in Form ACA 12 set out in the First Schedule.

(2)The Executive Director shall maintain a database of all the particulars submitted under this regulation.

(3)A person wishing to make a search on the database maintained under this regulation shall apply in Form ACA 13 set out in the First Schedule and pay the fee specified in the Second Schedule.

16. Disposal of seized goods

(1)Where the goods seized under the Act are required to be returned to the owner, an inspector shall release the goods after completing Form ACA 14 of the First Schedule and any goods used for testing or analysis shall be recorded.

(2)Where the goods seized under the Act are perishable, the inspector shall apply to a magistrate for an order of disposal.

(3)Any goods forfeited under section 28(2) of the Act shall be destroyed or disposed of in such manner as the Executive Director may determine.

(4)The Executive Director shall ensure that the disposal under this regulation shall not adversely affect the owner of the intellectual property right or a licensee.

17. False declarations

A person who—

(a)with intent to deceive or mislead, gives any false information in relation to any application made to the Agency or Commissioner; or

(b)removes, adds to, alters, defaces, or renders illegible any information on any Form prescribed under these Regulations in relation to any goods or tools,

commits an offence and shall be liable upon conviction to imprisonment for a term not exceeding six months, or a fine not exceeding six thousand shillings, or both.

18. Appointment of an Agent

The owner of an intellectual property right may appoint an agent to act on his behalf by completing Form ACA 15 of the First Schedule upon payment of the fee specified in the Second Schedule.

19. Forms

(1)The forms prescribed in the First Schedule to these Regulations shall with such modifications as may be necessary, be used for the purpose indicated therein.

(2)Notwithstanding the provision of these Regulations, a document which deviates from the prescribed form shall not be void by reason of the deviation which does not affect the substance of the document, unless it is calculated to mislead or deceive in which case regulation 17 shall apply.

20. Offence

The owner of suspected counterfeit goods who continues to deal or trade in goods of similar description, commits an offence and is liable upon conviction to imprisonment for a term not exceeding six months, or to a fine not exceeding six thousand shillings, or both.

21. Discretion

(1)The Executive Director may exercise his discretion on any application made under these Regulations.

(2)Any person who is aggrieved by any decision of the Executive Director may appeal to the Minister.

22. Approved laboratories

The Minister shall publish a list of approved laboratories for the purpose of testing or analyzing goods seized under the Act.

23. Register

(1)The Executive Director shall maintain registers of all complaints received and prosecutions instituted under the Act.

(2)A person wishing to search the register maintained under paragraph (1) shall apply in Form ACA 13 set out in the First Schedule and pay the fee specified in the Second Schedule.