Like clockwork, behind every mega corporate launch in Kenya is a law suit over allegedly ‘stolen’ intellectual property (IP). In a recent High Court ruling in Incognito Productions Limited & another v Nation Media Group  eKLR, the learned judge appeared to sympathise with the Plaintiffs but not enough to grant their application for a temporary injunction against the Defendant, one of Kenya’s largest media conglomerates that recently rolled out a multi-million shilling project dubbed ‘Lit Music’.
The face of Lit Music (which is really just a record label) is ‘LIT 360’, a 1-hour programme made available simultaneously on Nation’s radio, television and digital platforms. LIT 360 was designed with the aim of talent scouting, soliciting and harvesting content, as well as distribution, marketing and promotion of musical talent. As readers may have undoubtedly figured out by now, the Plaintiffs’ claim is that Nation unlawfully appropriated their concept which underlies Lit Music and LIT 360 based on a series of confidential business proposals made to Nation by the Plaintiffs between July 2016 and March 2017.
Recently, a leading newspaper published a story here stating that Safaricom Limited had obtained interlocutory orders against Colour Planet Limited stating that the latter was “forbidden from interfering with any contracts Safaricom has under the banner Okoa Stima, suggesting to any third party that Safaricom does not have the right to use the name Okoa Stima.” The rest of the story is filled with several contradictory and confusing facts regarding trade mark searches made, trade mark applications filed and trade mark registrations with respect to the Okoa Stima mark by both Safaricom and Colour Planet.
This blogpost is intended to set the record straight on the specific issue of the chronology of events at the Trade Mark Registry of Kenya Industrial Property Institute (KIPI) involving both Colour Planet and Safaricom between March 2015 and January 2016. For intellectual property (IP) practitioners, this post may also serve as a cautionary tale on the importance of care and caution when handling your clients’ matters pending before KIPI.
Recently, the much-awaited judgment in the case of Makate v Vodacom (Pty) Limited  ZAGPJHC was delivered by the South African High Court in Johannesburg. The case revolves around the “Please Call Me” (PCM) service whereby Vodacom allowed its subscribers to send FREE messages to anyone on all South African networks, asking them to call you. The idea behind this nifty service come from a former Vodacom trainee accountant Nkosana Makate who went to court seeking compensation from the telecommunications giant for the idea.
The thrust of Makate’s case was to enforce against Vodacom an oral agreement in terms of which the Vodacom (which was ostensibly represented by Geissler, as Makate claims) would take and test the idea and if it was successful, pay Makate an amount to be negotiated between by both parties, but which represented a share of the revenue generated by the product that was to be developed based on the idea.
The court, in its judgment, was prepared to accept an agreement with Geissler on the terms alleged by Makate had been concluded. However, the court ultimately held that Vodacom was not bound by the agreement entered into by Geissler since Makate had not shown that Vodacom made any representations as to Geissler’s authority to represent Vodacom in conclude the agreement or, even if it had, that the representations were such that Makate should reasonably have acted upon them. The court also found that Makate’s claim was time barred i.e. the debt claimed by Makate had prescribed in terms of the South African Prescription Act. This blogpost considers several intellectual property (IP) issues related to this case and possible lessons for Kenyans who come up with creative and innovative ideas within the course of employment.
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I am hesitant to believe the Defendants’ argument on the issue of intellectual property rights to the event since the traditional common law view that has prevailed is that it is difficult to attach ‘any precise meaning to the phrase “property in a spectacle”. A spectacle in this case refers to an event. A “spectacle” cannot, therefore, be “owned” in any ordinary sense of that word. – Mabeya J. in AMCIL v Joseph Mathenge Mugo & ABMCIL HCCC 242 of 2013 at paragraph 29.
In the recent case of Africa Management Communication International Limited v. Joseph Mathenge Mugo & Access Business Management Conferencing International Ltd. HCCC 242 of 2013 (hereafter the HR Symposium case), Justice Mabeya held that there are no intellectual property (IP) rights in a spectacle or event dubbed “Human Resource Symposium”. In holding that there is no IP in a spectacle, Justice Mabeya cited the Australian case of Victoria Park Racing and Recreation Grounds Co. Ltd v. Taylor (1937) (hereafter the Taylor case) where Latham CJ stated that: “The law of copyright does not operate to give any person an exclusive right to state or to describe particular facts. A person cannot by first announcing that a man fell off a bus or that a particular horse won a race prevent other people from stating those facts.”
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Many years ago, this blogger landed in South Africa as a wide-eyed 20-something law student. With a meager budget to survive on, many of my classmates and South African friends may have forgiven me for making abundant use of PCM. PCM is short for “Please Call Me”, a revolutionary service whereby Vodacom allowed its subscribers to send FREE messages to anyone on all South African networks, asking them to call you. PCM was a great way of getting in touch when you didn’t have any airtime to make calls or send SMSs. It suffices to say that this nifty PCM function really came in handy in cases of emergencies.
Presently, media reports indicate that Vodacom is embroiled in a David-vs-Goliath law suit with a former employee who claims that he came up with the idea of PCM and is now seeking compensation from the telecommunications giant. The ex-employee’s name is Nkosana Makate and from various media reports, this is what we know so far.
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