The Act, developed within the spirit of the Cartagena Protocol, lays down the legal and institutional framework to govern biotechnology in Kenya.

Prior to enactment of the Biosafety Act of 2009, Kenya had only biosafety regulations and guidelines lacking backing of an Act of Parliament, even though Kenya signed the Cartagena Protocol for Biosafety in 2000 and ratified the Protocol in 2003. Kenya also has in place a National Policy on Biotechnology and Biosafety.

Biosafety refers to a set of measures used for assessing and managing any risks associated with Genetically Modified Organisms (GMOs) and policies and procedures adopted to ensure safety to human and environment in application of biotechnology. While modern biotechnology has enabled researchers to make great strides in medicine and agriculture such as developing superior species with resistance to pests and diseases, there are genuine concerns that without proper biosafety mechanisms in place, biotechnology can result in such adverse effects as harming ecosystems and altering the genetic make-up of organisms and patenting life forms.

Just like many developing nations, Kenya faces many challenges in Research and Development (R&D) and adoption of modern biotechnology. The biggest challenges include inadequate funding of biotechnology activities, weak institutional structures, low levels of awareness and education on issues relating to biotechnology and biosafety and inadequate critical mass of experts in science, technology and other relevant disciplines.

The United Nations Environmental Programme – Global Environmental Facility (UNEP-GEF) has since 1996 been engaged in encouraging biosafety and biotechnology in Kenya. In 1997 the 10th GEF Council approved the first phase of a biosafety enabling activity pilot project for Kenya. It is hoped that with the enactment of the Biosafety Act 2009, Kenya will have in place a sustainable and effective biosafety management system beneficial to all its citizens.

David B Opijah, Nairobi

(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 programmes 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

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

The management of the Agency vests in the Board headed by a chairman appointed by the Minister. The day-to-day functions of the Agency are undertaken by staff headed by the Executive Director. These are appointed by the Board.

Part IV of the Act deals with Inspection. For example, section 22 deals with appointment of inspectors, while section 23 deals with powers of inspectors. Under section 23(1) (a) an inspector may enter upon and inspect any place, premises or vehicle at or in which goods that are reasonably suspected of being counterfeit goods are to be found, or on reasonable grounds are suspected to be manufactured, produced or made, and search such place, premises or vehicle and any person found in such place, premises or vehicle, for such goods, and for purposes of entering inspecting and searching such a vehicle, an inspector may stop the vehicle, wherever found, including on any public road or any public place.

The Anti-Counterfeit Regulations, 2010 were gazetted vide Kenya Gazette supplement No. 52 dated 20th August 2010. These Regulations are in force.

There have been challenges lodged in the High Court recently by way of Judicial Review directed at the Agency. These cases, mainly challenging the Agency’s powers, are still pending before court.

By David B Opijah in Nairobi, Kenya

A geographical indication can be defined as “a designation which identifies certain qualities or other characteristics or the reputation of a particular product to a specific geographical locality”. Protection of GIs is provided under articles 22 to 24 of the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). Article 22 of TRIPS defines GIs as “indications which identify a good as originating in the territory of a member, or region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin”. Both the Paris Convention and the Lisbon Agreement also provide for protection of GIs. GIs are essentially a marketing tool. They are intended to designate product quality, highlight brand identity and preserve cultural traditions.

In Kenya, the search for GIs legislation has been ongoing for a long time. From as early as the year 2001, proposals for draft GIs legislation have been debated by various stakeholders. The Geographical Indications Bill 2007 is still pending. In January 2006, the Kenya Industrial Property Institute (KIPI) sent a proposal for a technical cooperation project in the field of GIs to the Swiss Federal Institute of Intellectual Property (IPI). After a feasibility study by a consultant, the Board of Directors of IPI approved a proposal for a technical cooperation program between the two countries in December 2008. According to a memorandum of understanding between the two partners signed in 2009, the GIs legislation crafting project will be carried out in three main phases.

It is hoped that the cooperation between Kenya and Switzerland will help overcome some of the problems that developing and least developed countries face in setting up GIs. One challenge that these countries face is the cost element. There needs to be a careful balance between the cost of protection of a GI against its profitability. According to the Organization for an International Geographical Indications Network (OriGin) Secretary General Massimo Vittori: “there are costs involved in setting up a GI, notably to define specifications, and that would represent a cost for developing or least developed countries, which need financial assistance, for example, to create producers associations“.

GIs protection is a controversial subject, particularly within WTO. As the debate rages on within WTO, as to whether to extend additional protection offered to GIs to wines and spirits in article 23, to other products such as foodstuffs and crafts, it is hoped that the TRIPS Council will speedily resolve the matter. In the meantime, the wait for Kenyan GI legislation continues.

By David B Opijah in Nairobi, Kenya

According to EABC, a report published in 2008 by the Organization for Economic Co‐operation and Development (OECD) states that the global cost to companies from counterfeiting is estimated to be as high as $630 billion annually. Within East Africa Community(EAC), it is estimated that counterfeit and substandard products cost the East African governments over US$ 500 million in lost tax revenue annually.

East Africa’s business environment has been inundated with counterfeit and pirated products, making the region extremely unattractive to investors and genuine enterprises. Not only does it eat into the profits of legitimate operators, it also destroys jobs by undermining investment in product development.

The profitability and market share of EAC companies, especially those involved in manufacture of fast moving consumer goods have been negatively affected by counterfeits and pirated products. This has had serious negative impacts on the viability of industries, jobs and tax revenues across the region. Several industries have had to shut down, such as the textile industry and the music industry leading to loss of jobs. Cheap and sub‐standard products supplied through foreign and local traders and manufacturers are illegally replicating well‐known brand names and designs on their packages and labels. Imitation products are common in a variety of product areas.

East Africa does not have a regional Anti-counterfeiting law, even though some of the East Africa Community Countries such as Kenya already have legislation in place. There is, however an Anti-counterfeit Policy for East Africa. The regional Anti-counterfeit draft legislation is still being debated by the various regional stakeholders.

Being a high level ministerial conference to attempt to tackle the growing menace of counterfeits and illicit trade, the Nairobi meeting certainly signals a good start by the members of the East African Community.

By David B Opijah in Nairobi, Kenya

1. Industrial Property Act 2001 ( PDF Document )

1. Trade Marks Act ( PDF Document )

A ground-breaking case dealing with the concept of “Well Known” mark as set out in the WTO TRIPS Agreement and the Paris Convention, is underway before the Kenyan Registrar of Trade Marks, IP Kenya has learnt.

X filed an application to register a certain trademark which went on to the advertisement stage. This was opposed by Y. Y has not registered its mark in Kenya, but pleads that the mark is “well known”. Under the Trade Mark Rules of Kenya, a period of 60 days must elapse from the time of advertisement of an application in the Intellectual Property Journal published by the Kenya Industrial Property Institute, to the time the mark is finally registered. Opposition proceedings can be launched during the 60-day period.

Rule 46 states: “Any person may, within sixty days from the date of any advertisement in the Journal or Kenya Gazette of an application for registration of a trade mark give notice in form TM 6 to the Registrar of opposition to the registration”

It is hoped that the case will attempt to define parameters of the concept of “Well Known” mark in Kenya, and East Africa in general. Section 15A of the Kenyan Trade Marks Act domesticates the provisions of TRIPS and the Paris Convention, in relation to the “Well Known” mark concept. This is an area that has not been much litigated upon and the decision in this case is certainly bound to create new frontiers in the Kenyan Trademark law, especially as it relates to international treaties to which Kenya is party.

By David B Opijah in Nairobi, Kenya