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FAQs - Intellectual Property Rights Recordation

FAQs - Intellectual Property Rights Recordation

Under the Anti-Counterfeit Act, it is an offense to import goods that have not been recorded with ACA. It is also required upon importers to declare the intellectual property rights for goods being imported into Kenya. IPR Agents shall only transact with ACA once they have been admitted and registered as such.

{Last updated: 21 December 2022}


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[accordion_item title="1. What is recordation of Intellectual Property Rights?"]

Intellectual Property Rights (IPRs) recordation refers to the process of collecting and entering into an electronic database, information from Intellectual Property Right owners regarding their registered IPRs, irrespective of their place of registration, for all goods being imported into Kenya.

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[accordion_item title="2. What is the difference between IPR recordation and IPR registration?"]

IPR registration refers to filing an intellectual property with the relevant registering body in order to be granted exclusive rights with respect to ownership and use. In Kenya, industrial property rights are registered by Kenya Industrial Property Institute (KIPI) while copyrights are administered by Kenya Copyright Board (KECOBO).

IPR Recordation on the other hand refers to the process of submitting information regarding these registered rights (irrespective of their place of registration) to ACA. The information shall include images of products trading under these registered rights, the manufacturer details and contact persons.[/accordion_item]

[accordion_item title="3. What is the legal basis for Recordation?"]

The IPR recordation function is provided for under the following sections;
  1. Section 34B of the Anti-Counterfeit Act, No.13 of 2008.
  2. The Anti-Counterfeit (Recordation) Regulations 2021, LN 118 of 2021
  3. The Anti-Counterfeit (Amendment) Regulations 2021, LN 117 of 2021

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[accordion_item title="4. What is an IPR?"]

IPR is an abbreviation standing for Intellectual Property Rights and it refers to rights protected as trademarks, industrial designs, patents, utility models, copyrights or any other. In Kenya, Industrial property rights are registered by Kenya Industrial Property Institute (KIPI) while copyrights are administered by Kenya Copyright Board (KECOBO).[/accordion_item]

[accordion_item title="5. Who is an IPR owner?"]

A legal person with the capacity in law to enforce the intellectual property right in his own name.

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[accordion_item title="6. Who is an IPR Agent?"]

A legal person dully appointed under the Anti-Counterfeit Act through a Power of Attorney (Form ACA 15) and admitted as such to act on behalf of an IPR owner.

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[accordion_item title="7. Who is responsible for recordation?"]

The IPR owner or his agent who is duly appointed through a power of attorney and admitted by ACA as such.

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[accordion_item title="8. Is IPR Recordation a one-off?"]

Yes, subject to annual renewal. Refer to Annex:1 for more details.

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[accordion_item title="9. What does AIMS stand for?"]

AIMS is an acronym standing for ACA Integrated (IPR) Management System. This is the system through which ACA administers the Recordation process. The link for the system is; https://public.aims.aca.go.ke

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[accordion_item title="10. What is the process and cost of recording my intellectual property right with ACA?"]

Follow the procedure provided in Annex: 1.
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[accordion_item title="11. What is the process and cost of applying for admission as an agent with ACA?"]

Follow the procedure provided in Annex: 2.

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[accordion_item title="12. What do I need to know/do as an importer?"]

  1. An importer shall declare the IPRs relating to the goods they intend to import into Kenya through the KENTRADE’s Trade Facilitation Platform (Single Window System).
  2. Upon application for the Import Declaration Form (IDF), an importer shall be redirected to the Single Window System for purposes of ACA permit processing (Form ACA 2B).
  3. This process shall attract a fee of USD20 per consignment for every instance of application.
  4. An IPR owner who has recorded his right with ACA, his authorized agent, licensee or assignee shall be exempted from the payment of USD20. However, they shall still be required to declare the IPRs relating to the goods being imported.
  5. Raw materials, bulk goods, other industrial inputs, goods in CKD, machinery parts and used goods shall also be exempted from the payment process. An importer shall however be required to submit information supporting manufacturing, assembly or value addition in the case of raw materials, bulk goods other industrial inputs, goods in CKD and machinery parts.
  6. Transit and transhipment goods shall be exempted from the recordation process.
  7. Upon importation ACA shall then issue final clearance for the shipments.
 
NB. Attachment of an IPR registration certificate to the ACA permit shall be optional.
Clearing Agents and importers shall not be required to register with ACA in any way.

[/accordion_item]

[accordion_item title="13. How will the recordation process aid the issuance of the Enriched CoC?"]

In compliance with the government directive on the issuance of an enriched CoC, a CoC shall be considered enriched if it has an approved ACA Permit (Form ACA 2B) attached to it and the PVoC agent’s/Inspection officers have physically examined the related goods.

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[accordion_item title="14. What are the consequences of not recording?"]

It shall be an offence for any person to import into Kenya any goods or items bearing an IPR that has not been recorded with ACA.

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[accordion_item title="15. Is Kenya implementing a mandatory or voluntary recordation?"]

Kenya’s Intellectual Property Rights (IPR) Recordation will be an ongoing and process with the requirement for declaration of IPRs for imports commencing on January 1, 2023. Importation of unrecorded/unregistered goods shall be allowed as long as they are not counterfeit goods.

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[accordion_item title="16. What do I do if my goods do not have brands or registered trademarks?"]

It shall be an offence for any person to import into Kenya, in the course of trade, any goods or items except raw materials that are unbranded.

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[accordion_item title="17. Must IPRs relating to locally manufactured goods be recorded with ACA?"]

IPRs relating to goods manufactured in Kenya may be recorded voluntarily and free of charge.

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[accordion_item title="18. Are local manufactures affected by recordation regulation?"]

Kenyans IPR owners for locally manufactured goods are exempted from the pay schedule in the IPR Recordation. They are however encouraged to record their intellectual property rights to enable government agencies manning the ports of entry have their IPR records to deter entry of counterfeiting products

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[accordion_item title="19. What if I’m importing a few items for personal use?"]

An offence is only committed if goods are imported in the course of trade.

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[accordion_item title="20. What type of goods are exempted from IPR Recordation?"]

Goods exempted from recordation include raw materials, transit goods, secondhand goods, small quantitates for private and personal use, donations, goods in CKD, live plants and animals. Exemption consideration for other categories not mentioned can be granted by the Authority upon requisition.

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[accordion_item title="21. How can I confirm that a brand is already recorded with ACA?"]

This can be done by conducting a search on https://public.aims.aca.go.ke. This shall attract a fee of USD5 for every application.

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[accordion_item title="22. How does ACA intend to roll out the import processing process?"]

The import processing process shall be rolled out in phases starting with HS Codes relating to mostly counterfeited categories of goods. Please refer to Public notice here https://www.aca.go.ke/media-center/news-and-events/357-implementation-of-recordation-of-intellectual-property-rights-for-imports

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[accordion_item title="23. What is the main objective of IPR recordation?"]

IPR Recordation aims to prevent importation of counterfeit goods into Kenya thereby proactively protecting brand owners and consumers from harmful counterfeit goods.

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[accordion_item title="24. Why is Kenya implementing Recordation of IPR?"]

The IPR Recordation aims at preventing counterfeit imports into Kenya. An analysis of the counterfeit products seized over the years by ACA found out that 80% of the IP infringing products were imported into the country, while 20% were locally manufactured. The Authority had therefore to change its enforcement strategy to target the importation component.

Recordation is lauded as one of the most effective international best practices in prohibiting the importation of counterfeit goods. Kenya is the 4th country (after RSA, Algeria and Mauritius to adopt recordation in Africa. Recordation has also been employed internationally as a world’s best practice in combating counterfeiting in USA, China, Japan, UAE, UK, etc

[/accordion_item] 

[accordion_item title="25. Do brand owners benefit from Recordation?"]

Recordation is beneficial to intellectual property owners since it ensures that those who import counterfeit goods into Kenya will be stopped in their tracks and called to book. They are hence assured of their market share and protection of their IP from unfair trade practice of counterfeiting.

[/accordion_item] 

[accordion_item title="26. Do importers benefit from Recordation?"]

Importers stand to benefit from reduced clearance time and losses arising from enforcement interventions at the point of entry or in the market since clearance will be done at country of origin.

Recordation is a trade facilitation measure aimed at promoting fair and legitimate trade by creating a favorable and conducive business environment for all players.

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[accordion_item title="27. Are generics pharmaceuticals counterfeits and affected by the recordation requirements?"]

Generic pharmaceutical products that are legitimately manufactured and correctly labeled, are not counterfeit.

Recordation’s applies to all products bearing brand names or trademarks irrespective of whether they are generic or not since both original and generic pharmaceutical products with brand names can be counterfeited.

[/accordion_item] 

[accordion_item title="28. Are generics pharmaceuticals counterfeits and affected by the recordation requirements?"]

Generic pharmaceutical products that are legitimately manufactured and correctly labeled, are not counterfeit.

Recordation’s applies to all products bearing brand names or trademarks irrespective of whether they are generic or not since both original and generic pharmaceutical products with brand names can be counterfeited.

The recordation requirements are thus beneficial to trademark owners as they help protect registered marks from infringement and also protect our consumers from the health and safety risks pf consuming counterfeit drugs.

[/accordion_item] 

[accordion_item title="28. When is the commencement date for IPR Recordation?"]

The processing of applications for IPR recordation and admission of agents commenced on February 28, 2022. Processing of imports shall commence on 1st January 2023.

[/accordion_item] 

[accordion_item title="29. What other services can I access on the AIMS system?"]

  1. Application for Renewal of Recordation of Intellectual Property Rights.
  2. Application for renewal of Registration as an IPR Agent
  3. Application to continue recordation on Change of Ownership of IPR
  4. Notice of Change of Name of IPR owner
  5. Application for official Search of the IPR database
  6. Application for copies of documents.

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{Last updated: 21 December 2022}

Contacts

Anti-Counterfeit Authority (ACA)
National Water Plaza
3rd Flr, Dunga Rd Industrial Area,
P.O. Box, 47771-00100 (GPO), Nairobi, Kenya.
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