The Anti-Counterfeit (Amendment) Regulations 2021 (“the 2021 Amendment Regulations”) were gazetted on 23rd July 2021. The 2021 Amendment Regulations substantially contain what was in the Draft regulations of 2020, which had been the subject of several discussions and public participation fora.
Perhaps most notably, the 2021 Amendment Regulations introduce provisions that open the doors for foreigners (non-Kenyan), including foreign practitioners, to have an audience before the Anti Counterfeit Authority, a glaring shift from other IP laws, the Industrial Property Act (for registration and protection of patents, industrial designs, utility models and technovation certificates) and the Trade Marks Act (for trade marks and certification marks).
Unlike similar provisions in respect of agents admitted to practice before the Kenya Industrial Property Institute (KIPI) and the Trade Marks Registrar, where foreign applicants must be represented by an agent who in turn must be a Kenyan citizen among other requirements, the 2021 Amendment Regulations do not make it mandatory for foreign applicants to be represented by an agent let alone a Kenyan citizen admitted as an agent in proceedings before the ACA (reg. 18(2)).
The 2021 Amendment Regulations also introduce a procedure for compounding of offences (compounding is provided under Section 34A of the Anti Counterfeit Act), and provisions relating to the admission of agents practising before the Anti Counterfeit Authority (ACA), are also slightly amended from the previous 2019 Regulations. Other amendments are minor.
Though not altogether related, many potential Data Protection Officers (DPOs) must be eagerly awaiting regulations on DPOs to see if these officers under the Data Protection Act (DPA), whose duties include advising data processors and controllers on their compliance with the DPA, will be required to be Kenyan citizens or if firms, particularly Kenyan subsidiaries and branches, can have foreign (usually group/headoffice) DPOs.
Also gazetted at the same time are the Anti Counterfeit Recordation Regulations 2021 which introduce for the first time in Kenya a customs recordal and recordation model, aimed at heightening intellectual property protection and anti-counterfeit measures at our porous borders. We discuss these regulations in our next post.
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