“We wish to underscore the importance of fostering creativity through respect and protection of intellectual property rights of others. A nation cannot be built on disregard for originality and promotion of copy cats.” – Excerpt from a press statement by Transcend Media Group.
This blogger has come across the recent case of Transcend Media Group Limited v. Saracen Media Limited & 2 Ors Civil Case No. 3644 of 2016 in which Senior Magistrate E.K Usui has granted temporary injunctive orders sought by Transcend, the applicant against Saracen and the two other respondents. The court granted Anton Piller orders allowing Transcend to enter the premises of the respondents to preserve, seize, collect and keep machines, data, documents and storage material relating to Transcend’s copyright work under the supervision of Kenya Copyright Board (KECOBO) officers. In addition, the respondents have been restrained by the court from any further infringement, alienation, distribution and storage of Transcend’s copyright work pending hearing of the suit.
According to a Business Daily report here, the genesis of this copyright dispute is a Sh208 million tender by Safaricom seeking to procure the services of an advertising agency to handle the mobile network operator’s youth segment brand communication which is now called BLAZE. Transcend submitted its strategy proposal and creative body of works to Safaricom but lost the bid to Saracen. Transcend alleges that Safaricom awarded the business to Saracen and a Company (Fieldstone Helms Limited) owned by former Transcend staff who were involved in Transcend’s bid including the team leader. As a result, Transcend claims that Fieldstone Helms is now “illegally implementing” Transcend’s intellectual property (IP).
Transcend claims that it has already instituted a legal process with regard to the staff departure, corporate espionage and sabotage; as well as infringement of its IP and proprietary tools. It is reported that Safaricom allegedly forced Transcend’s client service director Thomas Omanga, senior art director Timla Tieng, designer Brian Oyugi and account director Christine Muchendu to resign and form Fieldstone Helms which has partnered with Saracen on BLAZE.
Less than 48 hours after obtaining the Anton Piller orders, Transcend accompanied by Enforcement Officers from KECOBO “raided” Saracen’s offices to secure the latter’s equipment and records to build its copyright infringement case.
According to the media report above, Safaricom’s lawyers seem to be convinced that they own all the copyright works that are make up their BLAZE product, presumably under the work for hire doctrine. However Transcend appears to be relying on a similar copyright law doctrine relating to works made in the course of employment. As we await a ruling by the court, it is clear that Transcend is faced with an uphill task in discharging its burden of proof that BLAZE is substantially similar to its copyrighted work(s).