EXPLAINER: Counterfeiting and the law in Kenya

‎The recent public debate surrounding online trader "Shiquo Hii Style" has thrust the issue of counterfeit goods and intellectual property rights into the national spotlight.

‎Videos, social media discussions and media reports linked to an enforcement operation by the Anti-Counterfeit Authority (ACA) have generated questions about what constitutes a counterfeit product, the powers of enforcement agencies and the rights of traders during investigations.

‎In response to the growing discussion, the agency has issued a detailed position statement explaining how counterfeiting is defined under Kenyan law, how investigations are conducted and what protections exist for businesses.

‎What is a counterfeit product?

‎Under Kenya's Anti-Counterfeit Act, 2018, counterfeit goods are products that unlawfully reproduce, imitate, copy or use a registered trademark, logo, packaging, label, design or any other protected intellectual property without the permission of the owner.

‎This means products bearing a brand name, logo or design that closely resembles a protected trademark may be considered counterfeit if they are being used without authorisation.

‎According to the authority, counterfeiters exploit the reputation and goodwill built by legitimate businesses and brands over many years.

‎“By falsely representing products as genuine, counterfeit goods deceive consumers about quality and authenticity, unfairly compete with legitimate businesses and undermine consumer confidence in the marketplace,” ACA said in its statement.

‎The authority added that the impact extends beyond individual businesses and affects Kenya's economic reputation, tax collection and investor confidence.

‎Why does Kenya have anti-counterfeit laws?

‎The laws are designed to protect consumers, businesses, innovators and entrepreneurs.

‎When businesses invest in creating products, developing brands and building customer trust, intellectual property laws ensure that others do not unlawfully profit from that investment.

‎Counterfeit products can also pose safety risks to consumers, particularly in sectors such as pharmaceuticals, electronics, automotive parts, cosmetics and food products.

‎The government argues that combating counterfeit trade protects both consumers and legitimate businesses while encouraging innovation and investment.

‎Does ACA target legitimate businesses?

‎One of the issues that has emerged in recent public discussions is whether enforcement actions amount to harassment of traders.

‎The Anti-Counterfeit Authority insists that its mandate is not to interfere with lawful commerce.

‎“It is critical to emphasise that the Anti-Counterfeit Authority does not interfere with legitimate business operations. ACA's enforcement activities are directed exclusively at unlawful trade in counterfeit goods,” the Authority said.

‎According to ACA, businesses that source products legally, maintain proper documentation and comply with intellectual property laws have nothing to fear.

‎“The authority's role is to protect legitimate enterprises from unfair competition by counterfeiters, not to hinder genuine trade,” it added.

‎How do investigations begin?

‎Many Kenyans assume enforcement operations occur randomly, but investigations often begin through several channels.

‎These include complaints lodged by trademark owners, intelligence reports, market surveillance activities, consumer complaints, public tip-offs and multi-agency operations.

‎Where investigators have reasonable grounds to suspect goods may be counterfeit, ACA inspectors are empowered under the law to conduct inspections, investigations, searches, detention and seizure operations.

‎However, these powers are subject to legal procedures and safeguards.

‎What happens when goods are seized?

‎The seizure of goods does not automatically mean a trader has been found guilty of an offence.

‎According to ACA, once goods are detained or seized, investigators prepare inventories, document the products and notify the affected party.

‎The trader is then given an opportunity to provide documents proving the authenticity and lawful acquisition of the goods.

‎Rights holders or their authorised representatives may also be involved in technical verification of the products.

‎Importantly, the authority notes that traders have legal recourse if they believe an enforcement action is unjustified.

‎“Critically, the affected party has the right to challenge any action before a court of competent jurisdiction,” ACA said.

‎Where investigations determine that the products are genuine and do not infringe intellectual property rights, the goods are released to their rightful owner.

‎The authority has therefore urged the public to distinguish between an investigation and a final court determination.

‎What rights do traders have?

‎Kenyan law provides several protections for traders during investigations.

‎Among them is the right to be informed about the reasons for detention or seizure of goods.

‎Traders are also entitled to present evidence showing that products were legally acquired and are authentic.

‎They may challenge enforcement decisions in court and seek legal remedies if they believe procedures were not properly followed.

‎This framework is intended to balance intellectual property enforcement with the rights of businesses and entrepreneurs.

‎Building a legitimate brand

‎The Shiquo controversy has also sparked wider conversations about brand ownership and entrepreneurship.

‎ACA noted that it had taken note of public statements expressing a desire to develop unique brands and encouraged entrepreneurs to pursue that path.

‎“The Anti-Counterfeit Authority welcomes this entrepreneurial vision and encourages all traders and entrepreneurs to pursue it within Kenya's intellectual property protection framework,” the Authority said.

‎The agency argues that building an original brand provides long-term value and legal protection for business owners.

‎How can entrepreneurs protect their brands?

‎The strongest form of protection for a business brand is trademark registration through the Kenya Industrial Property Institute (KIPI).

‎Trademark registration grants exclusive rights over a brand name, logo, slogan or design and enables legal action against unauthorized users.

‎According to ACA, registered trademarks increase brand value and provide stronger legal protection against infringement.

‎“Once registered with KIPI, the Anti-Counterfeit Authority stands ready to enforce those rights,” the Authority said.

‎Rights holders are also encouraged to use ACA's Intellectual Property Recordation System, which allows trademark owners to record their registered trademarks with the Authority.

‎The database helps enforcement officers identify protected brands and respond more effectively to suspected counterfeiting cases.

‎Why combating counterfeits is important?

‎The counterfeit trade remains a major challenge globally and in Kenya.

‎Authorities say counterfeit goods deny governments tax revenue, hurt legitimate businesses, discourage innovation and expose consumers to potentially dangerous products.

‎For that reason, the fight against counterfeiting requires cooperation among regulators, businesses and consumers.

‎ACA has urged businesses to source products from legitimate suppliers, maintain proper records and comply with intellectual property laws.

‎Consumers, on the other hand, are encouraged to buy goods from reputable outlets, verify authenticity where possible and report suspected counterfeit products.

‎“The Anti-Counterfeit Authority remains committed to enforcing the law fairly, professionally, transparently and without prejudice,” the Authority said.

‎According to experts, understanding the law is essential for both businesses seeking to grow and consumers seeking protection.