a tripartite report - Unctad

64 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE
“false trade description” means a trade description
which is false or misleading in material respect
as regards the goods to which it is applied, and
includes every alteration of a trade description,
whether by way of addition, effacement or otherwise,
where that alteration makes the description
false or misleading in a material respect, and the
fact that a trade description is a trade mark, or
part of a trade mark, shall not prevent such trade
description from being a false trade description
within the meaning of this Act.
“goods” means anything which is the subject of
trade, manufacture or merchandise.
“inspector” means any person appointed by the
Minister to be an inspector for the purposes of this
Act.
By policy direction, the Director-General of the
FCC was appointed by the Minister to be the
“Chief Inspector” for the MMA. The functions of
such inspector are substantially to inspect, seize
and destroy goods suspected and proved to be
counterfeits. Under Section 2 of the Merchandise
Marks Regulations (MMR) of 200877 , the following
“Counterfeiting” means with the authority of the
owner of any intellectual property right subsisting
in the United Republic of Tanzania or elsewhere in
respect of protected goods –
(a) the manufacturing, producing, packaging,
repackaging, labelling or marking, whether in
the United Republic of Tanzania or elsewhere, of
any goods whereby those protected goods are
imitated in such manner and to such degree that
those other goods are identical or substantially
similar copies of the protected goods;
(b) the manufacturing, producing or making,
whether in the United Republic of Tanzania
or elsewhere, the subject matter of that
intellectual property, or a colourable imitation
thereof so that the other goods are calculated
to be confused with or to be taken as being
the protected goods of the said owner, or
any goods manufactured, produced or made
under his licence;
(c) the manufacturing, producing or making of
copies in the United Republic of Tanzania or
elsewhere in violation of authors rights or
related rights.
“Counterfeit goods” or “pirated goods” of “offending
goods” means goods available as a result
of counterfeiting or piracy, and includes any
means used for the purposes of counterfeiting or
piracy.
“Piracy” means the illicit, prohibited or unauthorized
copying of any intellectual property right on
or over goods for the purpose of trade.
Under Regulations 4–5 of the MMR, the Chief Inspector
is clothed with powers to, inter alia:
(a) conduct an investigation on any breaches
of the Act and request assistance of a police
(b) detain or seize any goods which he reasonably
suspects to be counterfeit goods; and
(c) issue a receipt in respect of detained or seized
goods under this Regulation;
(d) conduct a public inquiry;
(e) issue a summons
(f) delegate in writing any of his functions to a
For purposes of carrying out these wide powers,
the Minister may, on the advice of the Chief In-
he may think appropriate for the purposes of the
better implementation of the Act 78 .
Under Regulation 34, the owner of the goods detained
or seized as suspected offending goods
may, within one month of the notice of detention
or seizure put up a claim in writing for their restoration
by the Chief Inspector. Where no claim is
made within the period, the goods shall be forfeited
and shall be disposed of as the Chief Inspector
may determine. At regulation 51, a person dissat-
appeal to the Fair Competition Tribunal.
3.1 Counterfeits and Competition
There has been criticism that the MMA and the
FCC for that matter are concerned largely with
goods imported into the United Republic of Tanzania
and not goods manufactured locally and sold
locally. The inspectorate emphasis is on imports as
well as on local music products. The locally produced
goods are shielded from foreign competi-