#ipkenya Weekly Dozen: 24/08

RIP Kofi Annan

  • Kofi Annan 1938 – 2018 [UN News]
  • TIDAL and MTN Uganda partner to bring music streaming to African customers [Official]
  • Unlocking Disruptive Technologies and Local Knowledge for Climate Resilience [CIF]
  • How State intervention could boost the fortunes of Kenya’s pharmaceutical sector [Captain Obvious]
  • Court Stops DStv in Nigeria [tekedia]
  • Rwandans launch first delivery drones in Africa [Ventures Africa]
  • Kenya: Anti-Counterfeit Agency digitizes operations to tame rogue business practices [Standard]
  • South Africa: Where does graffiti stand when it comes to copyright? [BIZCommunity]
  • IIPA Claims That South Africa’s Copyright Reform Bill Would Make The Country Ineligible For AGOA Benefits [Infojustice]
  • Kenyan Banks Seek Regulatory Approval to Use Blockchain Tech [Bloomberg]
  • Postdoctoral Research Fellowship: DST/NRF SARChI Research Chair: Intellectual Property, Innovation & Development [IP Unit]
  • Judges Wanted: Strathmore Law School ICT Moot 2018 [Volunteer Here]

For more news stories and developments, please check out #ipkenya on twitter and feel free to share any other IP/ICT-related items that you may come across.

Have a great week-end!

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High Court Judgment on Caller Ringback Tones, Definition of Public Performance and Regulation of Collecting Societies

IMG-20151023-WA0023 edaily dot co dot ke

Previously we reported here that several members of Music Copyright Society of Kenya (MCSK) had filed a case in the Commercial Division of the High Court challenging a license pertaining to the caller ringback tones (CRBT) service known as “Skiza Tunes” owned by mobile network operator, Safaricom issued by the three music collective management organisations (CMOs) including MCSK.

While the outcome of this commercial suit is still pending, we have come across a recently delivered judgment in the case of Petition No. 350 of 2015 David Kasika & 4 Ors v. Music Copyright Society of Kenya in which several MCSK members alleged that the collection of royalties by MCSK under the CRBT license agreement in question violates their constitutional rights, that the making available of works for download on Safaricom’s CRBT service amounts to a private performance as such section 30A of the Copyright Act does not apply and thus the CMOs cannot collect royalties on behalf of its members as required under the section. Finally, the petition invited the court to weigh in on several damning allegations made regarding mismanagement by MCSK in its collection and distribution of members’ royalties.

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Kenyan Java House Africa Triumphs Against Ugandan Cafe Javas in Crucial Trade Mark Court Case

Java House Africa Opens Grand Imperial branch Nile Avenue in Kampala Java House Coffee Shop Uganda Limited Photo by Sqoop

In a judgment delivered yesterday (February 9th 2016), the High Court of Uganda in Civil Appeal No 13 of 2015 has set aside the decision of the Registrar of Trade Marks at Uganda Registration Services Bureau (URSB). Mr. Justice Madrama Izama allowed the appeal by Nairobi Java House Limited with costs and found that the two marks from Kenya and Uganda in question are capable of concurrent usage.

Readers will recall that in an earlier post here, we confirmed that Nairobi Java House had filed an appeal against the decision of the Registrar in relation to trade mark opposition proceedings filed by Mandela Auto Spares Limited. The proceedings were against the registration of trade mark application numbers 48062/2013 “Java House” and “Java Sun” and 48063/2013 “Nairobi Java House” in the name of Nairobi Java House. The Registrar in his ruling upheld the objection of Mandela Auto Spares Limited and found that the proposed registration of Nairobi Java House’s trade marks would lead to confusion in the marketplace.

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“PANASUPER” Trademark Fraudulently Registered in Uganda: Judgment in Muse Af Enterprises Co. Ltd v. Billen General Trading Ltd & 2 Ors

PANASUPER PANASONIC TRADEMARK

This blogger has come across a recent judgment from Uganda’s Commercial Court in Muse Af Enterprises Co. Ltd Vs Billen General Trading Ltd & 2 Ors [2015] UGCOMMC 88. In this case, Muse filed an application for registration of the PANASUPER trademark in Uganda on 3rd August 2006 but the application was opposed by Matsushita Electronic Industrial Co. Ltd of Japan, the registered proprietors of Trademarks No. 25731 and 28536 PANASONIC. Since the registration of the trademark had been opposed, Muse requested a power of attorney from Linyi Huatai. The PANASUPER trademark was subsequently registered after URSB delivered a ruling disposing of the opposition of the trademark.

Later, Muse filed suit against Linyi Huatai and their local agent Billen for trademark infringement. However Linyi Huatai claimed that Muse had fraudulently registered the PANASUPER trademark in its own name. Linyi Huatai asked the court to cancel the registration of PANASUPER and claimed damages from Muse.

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Judgment by Court of Appeal Sets Stage for Opposition of “SONY HOLDINGS” Trade Marks

sony-holdings-tm

“Like the High Court, we are satisfied that the Registrar judicially and fairly exercised his discretion to extend time. He properly directed himself on the substance of the notice of oppsition so that the matter in controversy may be heard and determined with the benefit of evidence. The alternative, suggested by the appellant, namely to terminate the opposition proceedings on a technical procedural point, would be ineffectual, as the registration of the appellant’s trade marks would open new front of challenge and dispute between the same parties, on essentially the same issue.
We find no merit in this appeal. It is dismissed with costs.” – Githinji, Mwera & Ouko, JJ.A in the Judgment of the Court in Sony Holdings Ltd v Registrar of Trade Marks & another [2015] eKLR.

This blogger has come across the recently reported judgment of the Court of Appeal in the case of Sony Holdings Ltd v Registrar of Trade Marks & another [2015] eKLR. As previously discussed here, the so-called Sony case was filed in the High Court to challenge whether the Registrar of Trade Marks acted within his powers in extending time within which a notice of opposition to the registration of two trade marks could be lodged. Disatisfied with the decision of the High Court on this matter, Sony Holdings appealed to the Court of Appeal which has now delivered the present judgment. In its judgment, the appellate court upheld the decision of the High Court and found that the Registrar of Trade Marks had the discretion to extend time periods under Section 21(2) the Trade Marks Act read with Rules 46 and 102 of the Trade Marks Rules.

A copy of the judgment is available here.

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How Laughter Works: XYZ Show, Parody and Intellectual Property Rights in Constitutional Kenya

XYZ SHOW BUNI TV

“A society that takes itself too seriously risks bottling up its tensions and treating every example of irreverence as a threat to its existence. Humour is one of the great solvents of democracy. It permits the ambiguities and contradictions of public life to be articulated in non-violent forms. It promotes diversity. It enables a multitude of discontents to be expressed in a myriad of spontaneous ways. It is an elixir of constitutional health.” – Justice Albie Sachs in Laugh It Off Promotions CC vs South African Breweries 2005 (8) BCLR 743 (CC)

A parody, also called burlesque, satire or spoof, in contemporary usage is a work created to mock, comment on, or poke fun at an original work, its subject, author, style, or some other target, by means of humourous, satiric or ironic imitation. Parody, as a method of criticism, has been a very popular means for authors, entertainers and advertisers to communicate a particular message or view to the public.

In recent times, the popularity of parodies has brought this creative form of expression in direct conflict with the owners of the original works protected under intellectual property (IP) law, particularly copyright and trademark.

Read the rest of this article over at the CIPIT Law Blog here.