Anti-Counterfeit Agency Defends Flawed Proposals on Mandatory Intellectual Property Rights ‘Recordation’

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Yesterday the Anti-Counterfeit Agency (ACA) posted this response in the comments section of our blogpost last week titled: ‘Controversial 2018 Proposed Amendments to The Anti-Counterfeit Act’. In the face of widespread criticism from intellectual property (IP) experts, ACA has defended its proposed amendments to the Anti-Counterfeit Act which, if enacted, would effectively introduce a system for mandatory ‘recordation’ of trade marks, copyright and plant breeders rights to be administered by ACA.

Prior to writing that blogpost, this blogger had reached out to ACA for an official comment asking the following question: ‘What is your response to public concerns about the implications of the draft amendments to your Act on 1) the mandates of Kenya Industrial Property Institute (KIPI) and Kenya Copyright Board (KECOBO); 2) ease of doing business in Kenya generally; 3) international best practice?’ All the various responses from ACA will be considered in this blogpost.

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

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“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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Incidental Use and Copyright Exhaustion: High Court Ruling in Nairobi Map Service v Celtel Kenya (Zain Kenya)

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After 7 years in court, a judgment was recently delivered in the case of Nairobi Map Service Limited v Celtel Kenya Limited (Zain Kenya) & 2 others [2016] eKLR in which Nairobi Map sought to have the defendants namely Celtel/Zain Kenya (now Airtel Kenya), Z.K Advertising Kenya and the Sound and Picture Works company held liable for copyright infringement of a copyrighted map known as ‘Kenya Administrative Map’ which was included in the ‘Zain Coverage’ advertisement televised in August 2009.

According to the court there were 3 issues to determine namely: (1) whether the Plaintiff has copyright in the map known as ‘Kenya Administrative Map’; (2) If issue No. 1 is in the affirmative, whether all or any of the Defendants have infringed the Plaintiff’s copyright in the said map; and (3) Whether the Plaintiff is entitled to damages as prayed, from the Defendants or any of them.

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