A recent piece published in a local newspaper reads: “Let IP theft fall under law of unfair trade practices”. In this piece, the author contends that trade mark infringement is so rampant in Kenya that trade mark owners require a third layer of protection under competition law in addition to the existing courses of action under the Trade Marks Act and Anti-Counterfeit Act. This blogger argues that the author’s contention plainly misconstrues the purpose and scope of competition law. In addition, the author’s contention is unashamedly skewed in favour of intellectual property rights (IPR) owners. In response to the IPR maximalist stance taken by the author, this blogger argues that a permissive IPR regime could enable locals to acquire knowledge and skills from copying and reverse engineering which in turn could lead to innovation of improved localised products.

The relevant portions of the author’s piece read as follows:
“It is important to include IP infringement as a component of unfair trade practice because this will make it easier for the holder of genuine IPR to have additional courses of action in the event of infringement. If IP infringement is included as an unfair trade practice, then this means that in addition to remedies under the Trademarks Act and judicial remedies, the holder of original products can additionally recover from an infringer through the unfair trade practices legal regime. There is a tribunal established to handle incidence of unfair trade practices and this tribunal has powers to make certain decisions. For example it can order discontinuance of certain unfair trade practices and it can issue interim orders. The Competition Authority has powers to investigate incidence of unfair trade practice and has powers to enter and search premises upon which such acts take place. I believe enforcement of IPR would be heightened if IPR infringement was classified as an unfair trade practice under the Competition Act.”