Goodwill as Constitutionally Protected Property: High Court Case of Bia Tosha Distributors v Kenya Breweries, EABL, Diageo

warm-beer by gobackpackingdotcom Kenya tusker crate eabl

“I am acutely aware of the far reaching consequences of my conclusive finding that purely constitutional issues and questions have been borne out of a hitherto commercial relationship and hence the court’s jurisdiction rather than agreed mode of dispute resolution. I however do not for a moment view it that the framers of our Constitution intended the rights and obligations defined in our common law, in this regard, the right to freedom of contract, to be the only ones to continue to govern  interpersonal relationships.” – Onguto, J at paragraph 101 of the ruling.

A recent well-reasoned ruling by the High Court in the case of Bia Tosha Distributors Limited v Kenya Breweries Limited & 3 others [2016] eKLR  tackled the complex question of horizontal application of the Constitution to private commercial disputes governed by contracts with private dispute resolution mechanisms. More interestingly, the court had to consider whether the amount of Kshs. 33,930,000/= paid by the Petitioner to acquire a ‘goodwill’ over certain distribution routes or areas of the Respondents’ products can be defined as ‘property’ held by the Petitioner and as such protected under Article 40 of the Constitution.

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High Court Rules New Tobacco Law on Packaging, Labelling and Disclosure Does Not Violate Intellectual Property Rights

British American Tobacco Kenya

Previously, this blogger reported here that the High Court had suspended the coming into force of the Tobacco Control Regulations 2014 made by the Cabinet Secretary for Health scheduled to take effect on 1st June 2015. Recently in the case of British American Tobacco Kenya Ltd v Cabinet Secretary for the Ministry of Health & 4 others [2016] eKLR, Lady Justice Mumbi Ngugi (known to many readers for her landmark decision on anti-counterfeit law and access to medicines here) delivered a judgment at the High Court dismissing claims by ‘Big Tobacco’ that their constitutional rights including intellectual property (IP) rights are being violated by the new Tobacco Regulations.

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Kenafric ‘Fuma’ Footwear Denies Counterfeiting Claims by Puma

Kenafric Fuma Footwear

This blogger has previously blogged here and here about Kenafric’s fatal attraction to well-known trade marks, to put it mildly. The latest victim of Kenafric’s attraction is none other than Puma AG Rudolf Dassler Sport (Puma for short). In this connection, this blogger came across a recent ruling in the case of Kenafric Industries Limited & another v Anti-Counterfeit Agency & 3 others [2015] eKLR.

In this case, Puma through its representative Paul Ramara lodged complaints at Anti-Counterfeit Agency (ACA) against Kenafric for trade mark infringement. ACA and Ramara went to Kenafric’s premises and demanded to check the same for goods in the name of Puma a demand Mikul Shah a director at Kenafric declined to comply with due to the fact that his company had not been served with any Court order directing the said search and entry. Consequently, Shah was arrested, taken to Ruaraka Police Station and charged with the offence of obstruction and released on bond.

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Recap of WIPO African Sub-Regional Workshop on New Perspectives on Copyright

WIPO African Sub regional Workshop New perspectives on copyright organized by the World Intellectual Property Organization in cooperation with the African Regional Intellectual Property Organization Harare Zimbabwe July 2015

This week, African Regional Intellectual Property Organization (ARIPO) hosted the WIPO African Sub-regional Workshop on New Perspectives on Copyright organized by the World Intellectual Property Organization (WIPO) from 20 – 21 July 2015.

The Workshop drew Heads of Copyright Offices in the ARIPO Member States and some Observer States who took part in this crucial Workshop aimed at discussing the management of Copyright and Related Rights in the face of new challenges emanating from new digital technologies. Also in attendance were copyright officials from Jamaica and Trinidad and Tobago who shared their experiences with their African colleagues.

What follows is a summary of the presentations made by the various participants at the Workshop.

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International Women’s Day: Celebrating African Women Leaders in Intellectual Property

Angélique Kidjo won her 2nd Grammy Award in 2015. The world renowned Beninoise singer-songwriter is Vice President of the International Confederation of Societies of Authors and Composers (CISAC). CISAC is the umbrella body for copyright societies worldwide.

Angélique Kidjo won her 2nd Grammy Award in 2015. The world renowned Beninoise singer-songwriter is Vice President of the International Confederation of Societies of Authors and Composers (CISAC). CISAC is the umbrella body for copyright societies worldwide.

Celebrated globally on 8th March, this year’s International Women’s Day highlights the Beijing Declaration and Platform for Action, a historic roadmap signed by 189 governments 20 years ago that sets the agenda for realizing women’s rights. The official United Nations theme for International Women’s Day 2015 is “Empowering Women – Empowering Humanity: Picture It!”

“When we unleash the power of women, we can secure the future for all” – United Nations Secretary-General Ban Ki-moon in his message for International Women’s Day 2015.

To mark this year’s International Women’s Day (#IWD2015), this blogger has compiled a list of some of the (influential) women (leaders) in intellectual property (IP) from Kenya and throughout English-speaking Africa. The women listed below (in no particular order) are primarily drawn from IP offices, academia, non-governmental organisations and the IP legal fraternity.

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Regulation of Online Video Content, Territoriality and Copyright

Trevor-3

This month South Africa’s top comedian Trevor Noah announced that he will be joining the award-winning late-night satirical news show, “The Daily Show With Jon Stewart” aired on US cable network, Comedy Central (CC). For those who would want to enjoy this Emmy and Peabody Award-winning television show on demand, there is always “Hulu”, a leading online video service. However for those accessing Hulu outside the US, you are likely to receive the following notice: “We’re sorry, currently our video library can only be streamed within the United States. For more information on Hulu’s international availability, click here.”

A similar service to Hulu called Netflix has been the subject of conversation in South Africa in a recent article here by TechCentral South Africa titled: “DStv wont sue Netflix users” then later changed to “DStv to launch Catch Up Plus”. The relevant portion of the article reads: “[DStv Digital Media CEO John] Kotsaftis says it’s not clear if it’s legal or not for South Africans to watch Netflix and similar services. What is clear, he says, is that these companies are breaking the law when they allow access to services to consumers in markets for which they haven’t purchased content distribution rights.” In this regard, many Kenyans may ask: “when you purchase a US virtual private network (VPN) to by-pass Netflix or Hulu region locks to watch shows and movies that are supposed to only be available to Americans, is that copyright infringement?” This blogpost explains why this question must be answered in the affirmative.

Read the rest of this article here.