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.
The recently reported High Court case of Evans Gikunda v. Patrick Quarcoo & Two Others  was born out of a business deal gone bad. At the heart of this dispute is a music application (app) that the plaintiff (Gikunda) claims to have conceptualised, designed and developed between 2012 and 2016. However Gikunda joined the employ of the 2nd Defendant (Radio Africa Group Limited) in 2013 where the 1st Defendant (Quarcoo), the Chief Executive at Radio Africa, ‘persuaded Gikunda to partner with him to ensure that the product gets to market’.
According to Gikunda, Quarcoo proposed that that once Radio Africa’s Board of Directors sanctioned its participation in his app, they would share out the ownership of the app as follows: Radio Africa – 40%; Gikunda- 30%; Quarcoo- 20%; and the remaining 10% to a strategic partner. However, in mid-2016, Gikunda resigned from Radio Africa after which he alleges that Quarcoo and Radio Africa sold the app, without his knowledge, to the 3rd Defendant (Safaricom).
“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).
In a recently reported ruling in the case of City Clock Limited v Country Clock Kenya Limited & another  eKLR, the plaintiff sought injunctive orders against the defendants barring them from conducting advertising business on the clocks units using the name “Country Clock”, which was similar to the registered trade mark “City Clock”, which it was contended, were confusingly and deceptively similar in set-up, get-up and appearance to the Plaintiff’s clock units.
According to the Plaintiff, the main issue in its application for interim orders was that the Defendants have been using a name that is so similar to that used by the Applicant for over thirty (30) years, which similarity in name, it averred, is phonetically similar to the pronunciation of the Applicant’s trademark of “City Clock”.
This blogger has come across a recent ruling in the case of Africa Management Communication International Limited v Joseph Mathenge Mugo & another  eKLR. In this case, the court declined to find the defendants (which included 2 ex-employees of the plaintiff) in contempt of court orders made preventing them from passing off and carrying themselves as a sister or associate company of the plaintiff (a former employer of the defendants). In addition the plaintiff sought to have the ex-employees committed in prison for three months for violating orders restraining one of the ex-employees from being a director in the 2nd defendant company for a stipulated period of 18 months.
This blogpost examines this case which illustrates the importance of ensuring that employers take proactive steps to secure all their intellectual property (IP) assets against employees no longer in employment and that such former employees are reasonably restrained by contract from trading using the IP assets of the former employer.