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 the name Kikoy as a trademark. 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? Louis Vuitton’s appropriation of the shuka should be a wake-up call for us. 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. Our government argues that the intellectual property (IP) system (patents, trademarks, copyright, industrial design etc.) 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 unique (‘sui generis’) legal framework for protecting our traditional knowledge and traditional cultural expressions.
In the meantime, existing IP laws can be used in some cases. Laws relating to collective marks 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 other legal tools for protection.