Effective anti-counterfeiting legal system: a key enabler for growth of Kenya’s pharmaceutical industry

Abstract

Michael Blakeney describes counterfeits as “goods, manufactured, distributed and sold as copies of goods which have been made without the authority of the owner of the intellectual property.”1 These goods – he notes - are intended to appear so similar to the original, so as to be passed off as genuine items. According to Ben Sihanya counterfeiting is the use of intellectual property rights (IPRs) without authority to produce similar or substantially identical product to legitimate products.2 This often includes use of famous brand-names, on pharmaceutical products (pharma-products) not manufactured by or on behalf of the owner of the trade mark, as well as exact copies which are traded in a form intended to be indistinguishable from the genuine pharma-product. He argues that counterfeiting connotes wilful infringement of IPRs and involves elements of fraud, forgery and deception variously consumers and legitimate traders reposing counterfeiting within realm of criminal law.3