Room for Judicial Review in Collective Administration of Copyright: High Court Judgment in Nakuru Pub Owners v. KAMP & PRISK

KAMP PRISK

The High Court of Kenya sitting at Nakuru has recently handed down an interesting judgment in the case of Republic v Kenya Association of Music Producers (KAMP) & another Ex-Parte Nakuru Municipality Pubs, Bars, Restaurants and Hotel Owners Association (Suing Through Their Trustees) [2015] eKLR. A copy of the judgment is available here. In this case, Nakuru Municipality Pubs, Bars, Restaurants and Hotel Owners Association sought judicial review orders of prohibition to restrain two collective management organisations (CMOs) from collecting licence fees and or levies from the membership of the Association. The CMOs in question: Kenya Association of Music Producers (KAMP) and Performers Rights Society of Kenya (PRiSK), two related rights CMOs representing owners of sound recordings and performers respectively.

The crux of the Association’s case against the CMOs is as follows:

“It is argued that the proposed levies and licences were never communicated to their association or any of the members, and that as they were not notified, or invited to participate in their formulation and approval nor gazetted/published, the Respondents [CMOs] failed in their duty to communicate the passage and approval of the levies to them, they are in breach of rules of natural justice by withholding information that would affect them economically and financially and a breach of their constitutional rights as enshrined in Article 43 of the Constitution. (…)”

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Sights and Sounds of World IP Day 2015: The East African Edition

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Recently, countries around the world celebrated World Intellectual Property (IP) Day 2015 under the theme: “Get Up. Stand Up. For Music”. This blogger is pleased to report that Kenya, Uganda and Tanzania each held their own exciting events to mark World IP Day 2015.

Here are some of the important highlights:-

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High Court Dismisses Judicial Review Application in “ZERO B” Trade Mark Dispute

Zero-B

This blogger has come across a recent judgment by the High Court in the case of Republic v Anti-Counterfeit Agency & 2 others Ex parte Surgippharm Limited [2015] eKLR. A copy of the judgment is available here. In this case previously highlighted here, Surgipharm Limited went to the High Court seeking judicial review orders to prohibit the Anti-Counterfeit Agency (ACA) from carrying out its enforcement mandates under the Anti-Counterfeit Act. Following a complaint against by Wiskam against Surgippharm, the Chief Magistrate’s Court, Nairobi granted ACA a warrant of entry, search and seizure was issued against Surgippharm with regard to the alleged counterfeiting activity.

While Surgippharm admits that Wiskam is the registered holder of the “ZERO -B” trademark in Kenya, Wiskam failed to disclose to ACA and the Magistrates’ Courts that Surgippharm had initiated proceedings for the expungement of the mark with the Registrar of Trade Marks at Kenya Industrial Property Institute (KIPI). Surgippharm also alleges that Wiskam also failed to disclose that had already commenced proceedings in the high court of Kenya seeking, inter alia, for an injunction order and an award of damages against Surgippharm, being HCCC NO. 542 of 2011.

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Some World Intellectual Property Day 2015 Posters from Africa

Map of World Intellectual Property Day 2015 Events

As the world prepares to mark World Intellectual Property (IP) Day this Sunday April 26th 2015, this blogger has come across several World IP Day posters from around the continent created to reflect this year’s theme: “Get Up. Stand Up. For Music”. According to the map of World Intellectual Property Day 2015 Events by World Intellectual Property Organization (WIPO), there are only sixteen (16) confirmed World IP events being held in ten (10) countries across the continent. This blogger reckons that this represents a low turn-out by IP stakeholders across Africa’s fifty four (54) states given this year’s World IP Day theme and the importance of World IP Day activities and events for awareness creation and public sensitisation.

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Copyright Act (Amendment) Regulations 2015: Attorney General Hikes Registration and Renewal Fees

The fees payable to the Kenya Copyright Board are only going up by “this much”

The Honourable Attorney General (pictured above) in exercise of the powers conferred by section 49 of the Copyright Act has made new regulations.

Contrary to the picture caption above, the thrust of these new regulations is a substantial increase in the fees for applications for registration and renewal of registration of a collecting society.

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Platinum Distillers (Kenya) Denies “Guarana” Trade Mark Infringement Claim by Diageo North America Inc

MOMENTUM ICE AND SMIRNOFF ICE WITH GUARANA Image by Ghalfa Kenya

Recently, this blogger came across a media report stating that Diageo North America Inc, suing jointly with UDV (Kenya) Ltd, which is its subsidiary in Kenya, has claimed that Platinum Distillers Ltd has begun the manufacture and sale of an alcoholic drink in Kenya known as Momentum Ice with Guarana, which is directly infringing on its trademark, Smirnoff Ice Double Black with Guarana. Both alcoholic beverages are pictured above.

According to this media report, the US company claims that Platinum has caused Momentum Ice to be produced with an overall packaging that constitutes confusingly similar features to its Smirnoff Ice Double Black with Guarana, which is distributed in Kenya by UDV. In particular, the report has reproduced a portion of the suit papers filed by Diageo which reads: “This [packaging] has been done in a manner and style calculated to deceive members of the public that the offending product is associated with us.” As result, Diageo and UDV have reportedly asked the courts to stop Platinum from using its trademark by way of packaging and selling of Momentum Ice with Guarana, in order to prevent further confusion among consumers who think the two products are connected.

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New Study on Patent, Utility Model and Industrial Design Activity in Kenya from 1990 to 2014

The Scinnovent Centre

The good folks over at The Scinnovent Centre have just published a new study titled: “Industrial Property Rights Acquisition in Kenya: Facts, figures and trends”. This March 2015 study was carried out with the aid of a grant from the International Development Research Centre (IDRC) with the partnership, support and guidance of Kenya Industrial Property Institute (KIPI) and National Commission for Science, Technology and Innovation (NACOSTI). The study used KIPI’s database of all industrial property applications and grants since its inception in 1990 to date (2014) and sought to answer four key questions: (i) Where do the inventions come from? In other words who owns the industrial property protected in Kenya? (ii) How does foreign (international) applicants compare with national (domestic) applications? (iii) In which economic sectors are the most industrial property applications registered? (iv) what are the key challenges/ bottlenecks faced by the applicants?

The data analysed in the study consists of the records of KIPI registry database on the filings, grants and registration of the IP protections for patents (1990 – 2013); utility models (1993 – 2013) and industrial designs (1991 – April 2014). The samples consisted of 2388 patents, 396 utility models and 1392 industrial designs. The study does not include data relating to patent, utility model and industrial design applications filed and granted through African Regional Intellectual Property Organization (ARIPO).

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