The intellectual property tale of how Kenya almost lost the Kikoi fabric

Recently, the Standard did a feature titled “How Global Coalition saved Local Fabric” in which it called for pro-active measures and long-term strategies to avert the loss of Kenya’s intellectual property assets to foreign entities.

“The country has seen one of its most indigenous products, Kiondo, snapped by international companies and nobody knows which one is next, whether is Kikoi, Maasai shuka, Akala, Akamba carvings, Gusii soap stones or Nyatiti, an eight stringed plucked musical instrument.” – Standard.

IPKenya has in the past argued for both IP-oriented protection measures (in the short term) and a sui-generis regime (in the middle and long terms) to deal with the issue of Kenya’s traditional knowledge products.

But for those who are not familiar with the Kikoi story in particular, here’s how it went:

In early 2008, a British company tried to register “Kikoy” as its trademark. The application would have given the company sole commercial rights to the term “Kikoy” – a corruption of “Kikoi”, the Kiswahili word for the distinctive colourful wrap skirts worn by men and women in East Africa.

Thousands of East Africans were about to lose their livelihoods – and freedom to use a word from their language and condemn many to greater poverty. Kikoi has always been popular with visitors to resorts along the coasts of Kenya and Tanzania.

The move to register was halted by Traidcraft Exchange in conjunction with the law firm, Watson Burton, which filed a successful opposition to the registration on behalf of the Government of Kenya through the Kenya Industrial Property Institute (KIPI).

Mr. Mathew Rippon, a solicitor in Watson Burton’s Intellectual Property team said if the trademark application was granted it would give the firm an effective monopoly in terms of imports into the UK and potentially whole EU making it impossible for Kenyan traders to export to the market.

According to a statement released by Traidcraft Exchange at the time, Ms Lisa Mann of Kisiki.com another UK company trading Kikoi products, first spotted the trademark application by the Kikoy Company UK Limited. Traidcraft Exchange passed on the news to a Nairobi based charity co-operation for fair Trade in Africa (COFTA), which mobilized its membership in 18 African countries and alerted KIPI.

On receiving the news the then Managing Director of KIPI and now Dean of the Faculty of Law at University of Nairobi, Prof. James Otieno-Odek recalls that Kenya had a few days left to oppose the application before the trademark application was granted in the UK. If the applications sail through, Kenyans would not export any Kikoi products to Europeans countries unless done through Kikoy UK Ltd. Prof Odek said Kikoy Ltd had filed three trademark applications in Kenya to register “Kikoy” the name “Kikoy wear” and register “Kasuku Kikoy”, all which the government could not permit.

Prof Otieno-Odek adds that “If the trademark application which was stopped was granted the company could convert the trademark which would mean the trademark applies to 30 European countries making it impossible for Kenyan Traders to export to the vast market. The company would also control all markets in Europe which could lead to a decline in employment creation in the clothing and textiles subsector.”

In a recent article titled “Protection of Traditional Knowledge and Traditional Cultural Expressions in Kenya” by Dr. Marisella Ouma, Executive Director of the Kenya Copyright Office (KeCoBo), rightly argues:

“The government of Kenya, through institutions like the National Museums of Kenya should register the Kikoi and other traditional cultural expressions (TCEs) as trademarks on behalf of the Kenyan citizens (…)
It is important to focus on these areas due to the rich cultural and genetic diversity that Kenya has and the attendant traditional knowledge (TK).
TK and TCEs have played and continued to play an important role in the lives of Kenyans. The use of TK can help in the development of the agricultural sector, preservation of genetic resources as well as bio diversity, the health sector as well as the creative industries. The various government bodies such as the Kenya Copyright Board, the National Museums of Kenya, the Kenya Industrial Property, the Department of Culture, the Kenya Wildlife Society, the Kenya Forestry Service among others should come together to ensure that there are synchronised efforts to ensure the protection of TK, TCEs and genetic resources.”