Zambia has taken a significant step towards stopping counterfeit goods at the border. It has introduced a new Trade Marks Act. However, the new trade mark enforcement system will only become operational once the Regulations are promulgated.
For years, businesses seeking to keep counterfeit goods out of Zambia have had limited options at the border. Unlike markets with established Customs recordal systems, brand owners have largely had to rely on enforcement after suspect goods had already entered the market. This position may now be changing under the Trade Marks Act No. 11 of 2023. The Act came into effect on 31 December 2025. It introduces measures to strengthen border enforcement against suspected counterfeit goods.
Under Part X of the Act, a trade mark proprietor or their licensee can apply to the Commissioner-General for border measures. They can do so if they suspect that counterfeit goods bearing their trade marks may enter Zambia. In practical terms, this could create a formal mechanism for businesses to alert Customs to their intellectual property rights. This would happen before suspected counterfeit goods reach the market.
However, the system is not yet fully operational. The Regulations needed to give effect to the process have not yet been promulgated. Their introduction will therefore determine how businesses can use the new measures in practice. It could also strengthen protection against counterfeit goods at Zambia’s borders.
Why businesses should pay attention
Counterfeit goods pose a significant threat to consumer-facing businesses. They affect not only revenue, but also customer trust and brand reputation. Years of investment in building a recognised and respected brand can be undermined by the circulation of fake products.
A functioning Customs recordal system could therefore provide an important first line of defence. It would allow businesses to identify and detain suspected counterfeit goods at the border. They would not have to wait until the goods had entered the market before taking action. This could make protection against counterfeit goods more proactive.
The proposed process requires the Commissioner of Customs to verify any trade mark registration with the Registry. This verification must take place before approving a recordal application. The measure aims to ensure that only valid rights are recorded. It also seeks to prevent misuse of the system.
Under the draft Regulations, the Registrar would have 14 days to confirm the validity of the registration. The Registrar would then have a further 14 days to notify the applicant that the recordal is effective. In practice, this means the process could be completed within approximately one month.
The draft Regulations also clarify the scope of the proposed recordal system. The measures would apply only to goods destined for Zambia. They would not extend to goods merely passing through the country. This reflects the territorial nature of trade mark rights. It is also an important consideration for businesses operating across regional supply chains.
A potentially accessible system
The proposed recordal regime appears to be relatively accessible to right owners. The Act makes recordal voluntary and, notably, does not indicate that an application fee would be payable.
Removing an upfront application fee could encourage greater use of the system. It could also make border enforcement measures more accessible to businesses once the process is formally introduced.
For rights owners, this could provide another practical mechanism for protection against counterfeit goods without creating an additional upfront financial barrier.
Questions remain over what happens after detention
While the Act sets out the process for detaining suspected infringing goods, it provides limited guidance on what happens once goods are detained. A detention notice must be issued within seven days. However, the subsequent enforcement process is not fully defined.
A proprietor or licensee may institute infringement proceedings within 10 days of receiving the detention notice. The Act also allows an importer or exporter to admit to the infringement. They may then consent to the disposal of the counterfeit goods within 90 days of detention.
The intersection between these periods is not entirely clear. Ordinarily, if proceedings are not instituted within the prescribed period, goods can remain detained for longer. This may be particularly relevant where separate concerns involve public safety or outstanding import duties.
The Regulations could clarify this issue once they are promulgated. Greater clarity would help businesses, Customs authorities, importers and exporters understand their respective obligations and rights. It would also help determine how the proposed protection against counterfeit goods will operate after detention.
The legislation also recognises the interests of importers. Under section 113, an importer may apply to court for the release of detained goods. The importer may also seek compensation where the recordal holder failed to institute proceedings within 10 days. This applies where the recordal holder had no reasonable grounds to seek the recordal.
What happens next?
Zambia’s proposed Customs recordal system could give businesses a stronger tool to tackle counterfeit goods at the border. However, its success will depend on the regulations governing the practical elements of its implementation.
Key issues still need to be resolved. These include who bears the cost of destroying counterfeit goods. Other practical questions may also require clarification before the system becomes fully operational.
With other African markets strengthening border enforcement, Zambia now has an opportunity to close a significant gap in its anti-counterfeiting framework. The next step is clear. The authorities must promulgate the Regulations and bring the promise of stronger border protection into practice.
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| Tebogo Motloutsi | Associate | mail me | | with oversight by Paul Ramara | Partner | mail me | |
| | Spoor & Fisher | | |
