a tripartite report - Unctad

TANZANIA
While it is recognized that the MMR has a regulation
on frivolous complaints, it is again a self-defeating
process as the whole MMA is based on “reasonable
suspicion”. Regulation 23 may still be a deterrent for
frivolous complaints aimed at frustrating competition.
The Regulation states that, “Where it is deemed
by the Chief Inspector that an application made
under Regulation 12 has been made frivolously or
with an improper motive, the Chief Inspector may
order the applicant to pay the owner or consignee
or consignor of the goods appropriate compensation
for any harm or loss occasioned through the
wrongful detention of the goods.”
Under Regulation 12, a person who suspects the
importation or exportation of counterfeits marks
or pirated copies in violation of his intellectual
property rights or any offending goods may make
an application in writing to the Chief Inspector and
scribed
form. However, from the wording under
regulation 4, the Chief Inspector may investigate a
suspected case at his own initiative.
To control frivolity, regulation 13 provides a discretionary
power to the Chief Inspector to require
the person who submits an application under
regulation 12 to provide adequate security or to
subscribe to an undertaking or bond to cover any
costs or liability arising from claims in the event
the goods are found not to be offending goods
or where proceedings initiated under the MMR
are discontinued or where there is an abuse of
the process by the applicant. Under subregulation
thousand shillings, imprisonment for a term of
two years or to both for a person who misleads or
gives false information (this includes the owner of
the IPR and the witnesses). This is a clear safeguard
against unreasonable complaints against competitors.
The process does not however, provide for a
reasonable chance for foreign based exporter to
the United Republic of Tanzania to defend themselves
against a local competitor – and thus the full
effects are felt by the importer.
From the requirements under regulation 12, it
appears that the Chief Inspector may not act on
anonymous complaints, as these may be sources
impossible for the FCC to identify the complainant
after the fact. Regulation 35 suggests that there
is a fee charged for making a submission to the
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Chief Inspector, which submission may be made
by a principal or an agent.
Anonymous complaints have been sparingly received
by the FCC and not acted upon as the FCC
requires, by law, full details of the owner of the
IPRs before they can invoke their powers. The IPR
owner or their agent must pay a security with the
FCC before the FCC processes their claim.
3.2 Counterfeits and Consumers
It is important for consumers to be protected from
harmful counterfeit products. Considering the level
of development of the United Republic of Tanzania,
and the fact that counterfeit products provide
cheaper sources to enjoy certain products, such as
feelings amongst consumers. While there is general
agreement that those that have an adverse
effect on health, such as foodstuffs and electrical
products, should be controlled, the case is not so
found in the market.
Consumers are aware of a “certain Government
department” that destroys pirated foodstuffs. A
Commission for this role as it goes to the core of
the large informal and trading SME sector that the
United Republic of Tanzania is renowned for.
Based on the wording of regulation 12 cited
above, consumers cannot submit an application
to the Chief Inspector as they are not owners of
intellectual property rights (IPRs). This is a clear
anomaly and the law should have provided for
consumer complaints where there is reasonable
suspicion of harmful counterfeit or offending
products, e.g. infant powdered milk. It is not
legally clear whether consumer organizations or
National Consumer Advisory Council (NCAC)
could equally raise a complaint without being
made to follow the process of depositing a security
fee with the FCC as stipulated under regulation
12 of the MMR.
3.3 Other Pertinent Issues on
Counterfeits
It is pertinent to note that the United Republic of
stretch the functions and duties of its competition
TANZANIA