According to data from Kenya’s Anti-Counterfeit Authority, an envisioned one of five merchandise bought within the Kenyan marketplace is counterfeit. Almost 10% of Kenya’s population uses counterfeit items that pose a severe threat. Kenya is especially at risk of counterfeits because it has an extended border with Somalia, Uganda, and Tanzania, which reduces the capacity to come across counterfeits smugglers. That difficulty, coupled with susceptible regulation enforcement, loopholes, and corruption, makes the fight against counterfeit goods in Kenya an extended and onerous one.
Laws relating to enforcing counterfeit business in Kenya do not expressly cater to e-commerce or online marketplaces. However, the Anti-Counterfeit Act No. 13 of 2008 states that it is an offence for someone to own counterfeit items or exhibit the selling of any counterfeit items, including the online promotion of counterfeits.
Also, the Copyright (Amendment) Act 2019 (section 35B) added a notice and takedown regime which permits IP proprietors to request the takedown of content material that infringes their rights or offers legitimate motives for not taking down the content material. If the offending content is not taken down or an appropriate clarification is given, a civil suit can be filed. In 2020, in the case of Safaricom PLC v Multi Choice Kenya Limited & three others, the High Court brought a ruling where it issued a brief order to Safaricom PLC (Safaricom) and Jamii Telecom Limited under section 35(D) (2) of the Copyright (Amendment Act) 2019 to save you or hinder the usage of its service, to get entry to service, internet site, domain names or situate in or outside Kenya, that is used to infringe the applicant’s copyright. In 2021, Kenya’s Court of Appeal stayed the execution of an order from the High Court that required Safaricom to bring down 141 streaming websites that had been airing content material pirated from Multichoice Ltd.
Therefore, a brand owner, who has an affordable motive to suspect that there may be a sale of its counterfeit items online, may also try and take down the content material earlier than laying a grievance with the Executive Director of the Anti-Counterfeiting Authority (aca.go.ke). The ACA will research and follow through with legal action against the perpetrator. It is vital to be aware that for the ACA to be involved, the rights holder has to have registered rights in Kenya.
Brand and trademark owners must also be aware that the ACA has started recording IP rights for items imported into Kenya. The recordation facilitates the ACA among different authorities and corporations in the detection of and enforcement of counterfeits. Recordation is available to all IP, no matter the country of registration.
Main platforms that must call for the vigilance of property rights holders
Jumia – This is the largest online retail store in Kenya. It sells a host of products, including mobile phones, tablets, computers & laptops, women’s and men’s fashion. It is also the first African company to win the world retail awards in 2013.
Kilimall – This is an online marketplace where users can buy and sell phones, cars, shoes, bags, furniture, and clothing. It also connects merchants and consumers via a professional e-commerce marketplace.
Sky Garden – This is an app that has a fully stocked inventory management system that business owners can use to upload products and specify price points, stock levels, and variants. Once products are uploaded, they immediately appear on the customer marketplace.
Avechi Kenya – This is a popular online electronics app in Kenya that offers a wide variety of smartphones and electronics.
Jiji – This marketplace mainly deals with second-hand vehicles, real estate, fashion, mobile phones, and electronics.
PigiaMe – This is a marketplace that deals with the buying of new and used goods.
To help tackle the selling of counterfeit goods on marketplaces in Kenya and Africa, IP Twins offers a wide range of services aimed at detecting possible infringements online – including marketplace platforms – and can also help you in the enforcement of your intellectual property rights (including filing complaints and content removal).
Irfan Hassan.
