In the paint world: A number of companies have been shut down due to unfair competition from counterfeits. PHOTO | FILE
By CATHY MPUTHIA
In Summary
The East African Community is growing in terms of
trade and business with a lot of foreign investors venturing into the
bloc. Industries are also growing as multi-nationals spread across
countries within the region.
Intellectual property laws ensure that services and products
are protected from infringement and counterfeiting. Trademark laws, for
example, allow a trademark holder to institute proceedings against a
third party who infringes on the mark.
This means that if one produces goods or services
which bear a similar mark to the registered one then the trademark
holder can seek court remedy against the infringer.
Infringement is a common problem in the region.
Another common problem is counterfeiting, where counterfeiters
manufacture products which bear the mark of the business holder.
Counterfeiting is a major problem in the region. A few months ago counterfeit drinks were seized in some parts of Nairobi.
Counterfeiters packaged illicit drinks in bottles
bearing names of well known brands. Some people consumed the drinks
believing them to the genuine products. In the vehicle industry, a lot
of spare parts are not genuine.
Counterfeits expose the consumer to a lot of
dangers. They are also a big problem to the legitimate business owner as
they eat into his market share and also expose him to potential
litigation from consumers harmed by the products.
The legitimate brand also loses its reputation due
to the harmful effects of the counterfeit. A number of companies have
been shut down due to unfair competition from counterfeits.
Counterfeiting is supported by a number of factors. One is that the
consumer may not be aware of the potential dangers in consuming a
counterfeited product.
Often consumers do not know that counterfeits are
illegal. I will use an example. Counterfeits are common in the cosmetics
industry. When one wants to buy a certain brand the stocker often asks
whether one wants the original — at a premium price and of high quality —
or ‘‘the other one”, which is cheaper and of inferior quality.
Unregistered marks
The brands look exactly the same, however the
countries of origin are often different. Many consumers would rather buy
cheaper counterfeits than expensive original products.
This way, consumers support the counterfeiting industry. How should a business guard against counterfeits and infringement?
The first thing is to register your intellectual
property, if possible in all the countries that you operate. The law
states that no action can be taken against unregistered marks.
Registration gives you ability to pursue remedies against infringers.
The remedies include judicial orders, stopping third parties from using
your registered mark, and destroying or seizing goods that bear a mark
similar to yours. Ensure that your goods have all certification and
standard marks to assure the public of their quality. Certification
also helps your business meet regulatory requirements.
A lot of counterfeits do not have certification
marks as the businesses are illicit. It is prudent to also carry out a
consumer awareness campaign on the dangers of consuming counterfeits.
In the event there is suspected counterfeiting of
your products then educate the consumer on how to distinguish the fake
from your genuine products.
Some people consume counterfeits because they are unable to distinguish them from the original.
The Anti-Counterfeit Agency will help you to arrest and prosecute counterfeiters and also seize fake goods.
Consumers can also file complaints with authorities and pursue public litigation against offenders.
Mputhia is the founder of C Muthia Advocates. cmputhia@cmputhiadvocates.com
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