Combating Counterfeit Trade in Kenya

Abstract

Product counterfeiting and trade in counterfeit products, labels and packaging involve imitation of genuine products that are marketed under brand names.3 Counterfeit products are becoming a major problem to consumers, innovators and traders in Kenya and globally. Such imitations are usually clones or falsified products, labels and packaging designed to look like those of genuine products. The aim is to confuse or deceive consumers as to their quality, source, origin or legitimacy. Counterfeits are manufactured, processed or supplied by unscrupulous traders who infringe and unlawfully apply other corporations’ or individuals’ innovations and intellectual property (IP).4 The basic thesis in this Chapter is that although there are short-term gains to consumers and the Kenyan economy from counterfeiting, the medium and long-term losses are massive. This Chapter adopts a three-pronged strategy on combating counterfeiting in Kenya. First, I evaluate the nature and extent of counterfeit trade in Kenya in the context of trade liberalization and the development of an information society. I also assess the effects of counterfeit trade on the various economic players including consumers, innovators, traders, investors, and the Kenyan Government. Second, I evaluate the intellectual property regime in Kenya and how IP can combat counterfeiting. I then carefully examine the anti-counterfeiting law and enforcement mechanisms in Kenya, including their effectiveness in addressing the problem. Third, I explore how that law can be reformed to ensure sustainable development by protecting innovators, consumers and other stakeholders.