Trade Mark vs Company Name Registration: Innscor Int. Battles Rwandan Companies, Pizza Inn Ltd and Chicken Inn Ltd

innscor-international-rwanda-trademark-pizza-inn-chicken-limited-image-by-nlipw

In a recent media report here, the Commercial Court of Nyarugenge in Rwanda has ruled that it will not proceed with a case filed by Innscor International accusing two local companies Chicken Inn Limited and Pizza Inn Limited of trademark infringement in Rwanda. The basis of this ruling was reportedly that Innscor had not demonstrated to the court that it had “legal status according to the law governing registered entities in Rwanda”. Technicalities aside, it is clear that once Innscor produces its certificate of incorporation in court, this case would proceed to consider the merits of Innscor’s claim (as illustrated by the picture above), namely that registration of a name as a company name by entity A should not trump any rights in such a name acquired previously by entity B through trade mark law.

Continue reading

Advertisements

High Court Upholds Freeze of Collecting Society’s Bank Accounts: Ruling in MCSK v Chief Magistrate, Inspector General

Music-Copyright-Society-of-Kenya-MCSK-CEO-Maurice-Okoth People Daily

This blogger has recently come across an astute ruling by the High Court in the case of Music Copyright Society of Kenya v Chief Magistrate’s Court & Inspector General of Police [2015] eKLR. Justice L. Kimaru sitting in the High Court was approached by the authors’ collecting society, Music Copyright Society of Kenya (MCSK) to stay orders issued by the Magistrate’s Court freezing all the bank accounts of MCSK following a request by the Serious Crimes Unit under the Directorate of Criminal Investigations (DCI). DCI requested that MCSK’s accounts be frozen as it investigates complaints made by MCSK members in regard to alleged misappropriation and theft of funds at the collecting society.

After carefully evaluating the facts before him, Kimaru J ruled that the investigations were lawful and based on several complaints received by DCI from MCSK members and that the orders to freeze MCSK’s accounts were within the precincts of the law.

Continue reading

Pay TV Disputes Copyright in Free-to-Air Broadcast: Appeal Case of Wananchi Group Uganda v. New Vision

Robert Kabushenga New Vision CEO Bukedde TV Zuku

This blogger has come across a recent ruling by Uganda’s Court of Appeal in the case of Wananchi Group (U) Ltd v. The New Vision Printing & Publishing Co. Ltd. The background of this case is as follows: New Vision had filed an application against Wananchi in the High Court for a temporary injunction seeking to restrain the Wananchi from further infringement of the New Vision’s copyright in the production, air transmission or broadcast of “Bukedde Television” through Wananchi’s Zuku Television.

In the High Court, New Vision contended that Wananchi continued to infringe on the New Vision’s copyright by retransmitting Bukedde TV for private benefit and for personal economic gain without the consent or licence of the owner despite express warning. The High Court agreed with New Vision and granted the order of a temporary injunction. This brings us to the present case of Wananchi’s application in Court of Appeal for an interim order of stay of execution of the order of the lower court.

Continue reading

Image Rights, Privacy and Related Rights in the Workplace: High Court Case of Sikuku v. Uganda Baati

Circled: Sikuku, maybe.

Circled: Sikuku, maybe.

“The persons who created and did the video shooting or who employed the person who carried out the work of shooting the photos and video is/are the authors or author of the works. The exact relationship between an author and a person having neighbouring rights has to be clear and not hazy. A photographer who films activity in a market might not require permission of everybody in the market to publish or use the works.” – Madrama J. at page 15.

This blogger has come across a recent High Court decision of Sikuku v. Uganda Baati HCCS No. 0298 of 2012 before the very able Honourable Justice Mr. Christopher Madrama, whose decisions we have previously discussed here and here. A copy of the present judgment is available here. Sikuku, a long-time employee of Uganda Baati claimed that the latter was unfairly benefiting from the use of his images in Uganda Baati advertisements presented in both photographic and audio-visual forms to the public. Sikuku sought an order for the payment of Uganda shillings 150,000,000/= as “usage fees” from Uganda Baati. Sikuku contended that his employer had infringed his rights under the Uganda Copyright and Neighbouring Rights Act as well as the Constitution of Uganda. The court dismissed Sikuku’s entire case against Uganda Baati. The learned Madrama J. found that Sikuku does not qualify to have neighbouring rights as protected by the Copyright and Neighbouring Rights Act 2006. Further, the court found that Sikuku has not proved unlawful interference with his constitutional right of privacy under article 27 by Uganda Baati.

This blogpost discusses the Uganda High Court’s treatment of the intersecting issues of image/privacy rights, and neighbouring rights as they arose in the Sikuku case. Ultimately, this blogpost finds that this case is instructive for participants both behind and infront of the camera lens.

It is not disputed that Sikuku appears in photos used in Uganda Baati’s in-house SAFAL magazine and the Contractors Year Planner. It is also not disputed that Sikuku appears on audiovisual adverts commissioned by Uganda Baati which were broadcast on several television stations including WBS and NTV. However the court had to determine whether or not these “appearances” amounted to “performances” as defined in copyright law and by extension, whether Sikuku fell within the definition of a “performer”.

A “performer” under section 2 of the Uganda Copyright and Neighbouring Rights Act is defined to include an:

“actor or actress, singer, musician, dancer or other person who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore.”

Madrama J. in his judgment states that Sikuku cannot be a “performer” under the Act. His reasoning is thus:-

“The evidence demonstrates that the Plaintiff [Sikuku] was going about his business when he was filmed and photographed. He was not required to pose for the photograph or for the filming though they had been given new uniforms for the occasion. He was filmed and photographed in the ordinary course of his performance as a worker. (…) From the definition under the Copyright and Neighbouring Rights Act the Plaintiff is not an actor because he was filmed and photographed in the ordinary course of his work as an Employee of the Defendant. (…) the Plaintiff is not a performer whose action was deliberate so as to be a necessary ingredient of the works complained about and which ought to be paid in terms of performance fees (…) It is debatable whether the advertisement prominently portrays the Plaintiff’s photo or actually displays the Defendant’s products together and incidentally with the workers engaged in the work of production of the products using the machinery. The plaintiff is not at all the major or main feature of the advertisement. (…) The Plaintiff is not an artist and he was not bringing special skills so as to properly present the Defendant’s products. He was merely going about his business when he was filmed.”

On this point, this blogger concurs with the judge’s careful consideration of the definition of “performer”. Sikuku’s role in the audio-visual work cannot be likened to that of an extra in a movie or other production. While it is clear that Sikuku may fall within the category of “other person who acts, sings, delivers, declaims, plays in, interprets, or otherwise performs”, the missing part appears to be the subject matter of the “performance”. In the case of an extra, there is a script and an assigned role given to each “performer” such as “workman #1 operating heavy machine”, which would appear in the movie credits at the end of the movie.

On the issue of image/privacy rights, the court provides a useful analysis of the privacy clause in the Constitution of Uganda, which closely mirrors the privacy article in Kenya. In finding that there was no infringement of privacy rights, the court correctly reasoned as follows:-

“The court should consider whether photos of Employees taken in the course of their employment showing them at work cannot be used by the Employer for purposes of advertisement without consent or payment of consideration. The plaintiff should demonstrate that the filming or photo was taken in a private moment such us when eating or resting. Such a conclusion should be based on the terms of the contract. In the absence of the terms of any contract excluding an Employer from publishing photos and audio visual works of products including members of staff in a factory carrying out their work, the Plaintiff has no case presented before the court. As far as the rights to privacy is concerned, someone who works in a factory as contained in exhibit P1 and P2 cannot claim a right to privacy. The factory is owned by the Defendant and the Defendant can bring in people at any time to inspect the factory thereby excluding the rights to privacy.”

Watching World Cup 2014 in Kenya: FIFA’s Media and Public Viewing Rights

Tonight the Brazil 2014™ FIFA World Cup™ (WC) kicks off in the South American nation of Brazil! As previously discussed here, FIFA has developed and protected an assortment of logos, words, titles, symbols and other trade marks to be used in relation to the 2014 FIFA World Cup™ (the Official Marks). In order to attract funding to stage such a large event, FIFA offers its partners, sponsors and supporters the exclusive rights to use of the Official Marks for promotional and advertising purposes.

In this post, we shall consider FIFA’s intellectual property (IP) rights in the broadcasts and public view of the WC. It is clear that all copyright and other (IP) rights subsisting in, and all goodwill associated with, broadcast coverage of the WC are exclusively owned by FIFA and protected by domestic and international law. In this regard, FIFA distinguishes between broadcasters who are defined as Media Rights Licensees and exhibitors who stage Public Viewing Events in relation to any matches of the 2014 FIFA World Cup Brazil™.

Read the full article here.

Content Licensing Requires Salesmanship: Lessons from the Banned “Wolf of Wall Street”

The-Wolf-of-Wall-Street-KFCB-Facebook-page1

 

One of the most talked about stories in the month of January was the decision by the Kenya Film Classification Board (KFCB) to ban the sale, exhibition and distribution of the critically acclaimed Hollywood film “The Wolf of Wall Street”. KFCB claims that the film was “restricted” due to elements that include nudity, sex, alcohol, drugs and profanity found in almost every scene of the 3-hour long motion picture which chronicles the title character’s (Jordan Belfort’s) pursuit of the American Dream. This blogger has watched the banned film and believes that it is a must-watch for all those involved in the sale/assignment and/or licensing of content. In particular, this blogger recommends several short clips from the movie where the lead character demonstrates the art and skill of making a sale.

 

 

In the Kenyan context, a higher degree of salesmanship may be required than that displayed by Belfort in the above clip due to the ignorance of copyright law among a large portion of potential content users. In fact, some licensing staff argue that in some cases, unless they physically visit business premises in the company of uniformed police officers, content users will not take out copyright licenses. However, this blogger argues that despite the low levels of awareness among copyright users, there is still an important need for sales training among the licensing staff of all the CMOs to ensure that they understand the content licenses they are selling and how to create the need and urgency among content users to take out the licenses.

Read the full article here.