Inventa International - Africa
The production of counterfeit goods is common in the trademark field as it is a business opportunity based on the consumer’s inability to identify second-generation goods. Laws surrounding this activity include:
- Article 177(1) of the Mozambican Industrial Property Code (Decree 47/2015), which defines the ‘production of counterfeit goods’ as an infringement committed by an entity that counterfeits a registered trademark without authorisation from the owner, uses a counterfeit mark or exports, imports, sells, puts on sale or circulates products or articles containing a counterfeit mark;
- Article 73(d) of the Mozambican Industrial Property Code, which stipulates that it constitutes an industrial property violation; and
- Article 319 of the Mozambican Penal Code (Law 35/2014), which states that it is considered to be a crime, for which the infringer could receive a fine or even imprisonment as per Article 310 of the same law.
Mozambique has a specific public institute to control counterfeit activity – the National Inspectorate of Economic Activities (Inspeção Nacional das Atividades Económicas (INAE)). Under the supervision of the Ministry of Industry and Commerce, it inspects all locations where industrial, commercial or service activity is carried out in the country, with the help of brand specialists. Further, it is particularly active in the capital city, Maputo.
The INAE aims to dismantle the circulation of counterfeit goods – namely, clothes, shoes, bags, perfumes, printers, filters and toners, the majority of which come from Asia. However, while the damage to trademark owners and the strain on the state due to tax evasion is severe, counterfeit food products are even more critical to tackle as they can put public health at risk.
The process of terminating counterfeit activity starts with a complaint to the INAE from the trademark owner. Following the seizure of the counterfeit goods, the INAE imposes a fine on the counterfeiter and submits a report of the process to the attorney general’s office for the subsequent criminal proceeding. The final outcome, in principle, is the destruction of the goods and a prison sentence for the infringer.
In order to prevent counterfeit goods from entering the country, trademark owners can submit an informal application to Customs, requesting that any goods imported with a trademark that does not match the name of the trademark owner or an authorised representative be classified as counterfeits. However, Customs may lack experts who are able to distinguish real products from fake ones, as it is difficult to detect counterfeit products at ports and borders. It is important to emphasise that Mozambique does not have a Customs Recordal Application system, unlike other African jurisdictions (eg, Kenya, South Africa, Ethiopia and Morocco).
The responsibility for controlling counterfeiting lies with the INAE, which is committed to remedying this situation and, if possible, preventing it, just as the government of Mozambique is aware of and dedicated to combating this activity. It is hoped that the combined efforts will be fruitful and the situation can be controlled in the near future.