The Kiondo case:
The Kiondo was not ‘stolen’ as is widely believed. Kenyans have simply failed to commercialise the Kiondo both as a product patent or even as a design. However, even if Kenya had filed a patent in respect of the Kiondo, the life of a patent under the law is only 20 years non-renewable. After this period, the patent falls into the public domain and can be freely used, adapted and copied by others.
With both the product patent and design windows firmly shut, the only other avenue for commercializing the kiondo is through a process patent. This is what Japan is currently doing and Kenya is not. The Japanese Patent Office database currently contains patented inventions able to produce en masse industrial woven baskets, some made of fabric or paper materials. Therefore for Kenyans to utilize the kiondo, there must be more aggressive brand campaigns so that we retain that positive link of association between the baskets and Kenya.
The Kikoy case:
A few years back a UK Company had attempted to register a trademark in respect of the Kikoy. This application for trademark registration was rejected because the word ‘kikoy’ has become a generic term (in the same way as ‘Xerox” in respect of photocopying) therefore it could not be registered in respect of textile goods. However for those innovative Kenyans that have been able to use the kikoy to come up with other products, these can be protected under our law as utility models or as distinctive trademarks.
The Maasai shuka case:
The question we must ask ourselves is for how many decades has the Maasai shuka been with us without us fully commercializing and exploiting it? So, if you are a Kenyan designer and have registered a trademark in respect of shorts, shirts and ensembles similar to those unveiled by Louis Vuitton, by all means assert your IP rights! In reality, Louis Vuitton now basically owns a piece of Kenya’s cultural history through branding of our Maasai shuka as part of its fashion collection. It’s up to Kenyans to turn this free publicity by Louis Vuitton into a marketing tool to showcase to the world more varieties and uses of the Maasai Shuka; It’s a rare opportunity that many countries don’t get.
Let’s exploit it!
The truth of the matter is that there are many aspects of our traditional knowledge and traditional cultural expressions that are already in the public domain and thus cannot be patented or copyrighted because they belong to some or all Kenyans. However there still exists widespread unfair exploitation of our cultural heritage by outsiders for commercial and business interests and this cannot be allowed to continue. The solution is still up for debate and so far we have two options. Our government argues that the intellectual property (IP) system (patents, trademarks, copyright, industrial design) only serves to protect private and corporate property but not the collective heritage of the past, present and future generations of local communities. Therefore they want us to develop a brand new legal system of protecting our traditional knowledge and traditional cultural expressions.
However I am of a differing opinion. Coming up with a new protection mechanism will take a long time to establish and may not in any case be politically feasible. Furthermore, why re-invent the wheel? Laws relating to Trademarks and certification marks have provided both positive and defensive protection for traditional knowledge and traditional cultural expressions in countries like Australia, New Zealand and the United States. Plus, with a law on geographical indications in the pipeline, we will have enough legal tools for protection requiring very few adaptations.
In the meantime, Kenyans must remain vigilant and stop being so generous with your intellectual riches. If you discover something, stumble across something, know of someone or something that is indigenous to Kenya and has useful commercial application and is of great societal value, harness its potential, don’t go disclosing it. We have already proved ourselves as innovators on the world stage with MPesa. It is time for Kenyans to look within and see what other ways we can develop the nation by turning those traditional medicines, genetic materials, cultural expressions into commercial assets and strong income-earners.