2013 Year in Review: Intellectual Property in Kenya

2013 was an election year for Kenya which resulted in the swearing in of Uhuru Kenyatta as the fourth President of the Republic. Kenyatta has been very supportive of the creative economy and has on several occasions reiterated his administration’s commitment to creating a conducive environment for creators to reap from their intellectual property (IP) assets. However, Kenyatta’s mark on IP this year was the decision to reform all state corporations and parastatals in Kenya which has set in motion plans to merge the copyright office, the industrial property office and the anti-counterfeit agency into one national IP office.

Copyright and Related Rights

In 2013, copyright news was monopolized by Safaricom which was embroiled with two high profile copyright cases with Faulu Kenya and JB Maina. Another popular copyright story was Longhorn’s acquisition of publishing rights for iconic educational textbooks writer, Malkiat Singh.

The year was also memorable for Kenya as she successfully negotiated and signed the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are BIlind, Visually Impaired or Otherwise Print Disabled.

Industrial Property

In 2013, trade marks stole the show with several far reaching rulings by the Registrar of Trademarks as well as the landmark acquisition of a local trademark by a multinational cosmetics company. In addition, trademark administration has continued to be the major revenue earner for the national IP office, Kenya Industrial Property Institute (KIPI) especially through the Madrid System.

The Red Bull case (available online) was an important decision in that it expanded the Kenyan IP jurisprudence in respect of the doctrines of “conceptual similarity” and “well-known marks”.

In the Basmati case, a clear distinction was drawn between trade marks and geographical indications within the context of Kenya’s international obligations under the World Trade Organisation (WTO) Agreement on Trade Related Aspects of IP (TRIPs) adopted in section 40A of the Kenya Trademarks Act.

In the Pyrex case (available online), the Registrar found that the withdrawal of a threat of opposition does not amount to a surrender of your rights to institute cancellation proceedings in respect of the same trade mark. This ruling was important because it provides a practical application of two amended provisions of the Act, namely Section 36A and 36B of the Act.

Later in the year, one of the largest cosmetics companies in the world, L’Oréal fully acquired the health and beauty divisions of local firm, Interconsumer Products Ltd, makers of Nice & Lovely brands, in a multi-billion shilling transaction. This acquisition is seen as part of L’Oreal’s push to dominate the East Africa’s low-end cosmetic market.

Legislative Developments

As previously discussed here, several amendments have been proposed to the Copyright and the Anti Counterfeit Acts in the Statute Law Miscellaneous Bill currently before Parliament is passed. Earlier this year, a proposed draft law on the protection of traditional knowledge and traditional cultural expressions was validated.

This year saw the enactment of the Science, Technology and Innovation Act, Consumer Protection Act, Media Council of Kenya Act and Kenya Information and Communication Amendment Act, all of which will affect IP administration and enforcement both directly and indirectly.

For more stories from 2013, check out the IPKenya archive on the right hand side of this page and information from other sites on our twitter feed.

See you all in 2014!

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