Through the Roof: Iron Sheet Firm Sues for Trade Mark, Industrial Design Infringement

Royal Mabati Factory Website Iron Sheet Box Profile 2018 Kenya Limited

 

In what could be a precedent-setting case for the roofing products market, a leading iron sheet manufacturer is claiming both trade mark and industrial design protection for two of its roofing brands against a smaller rival company. The recently reported ruling in Royal Mabati Factory Limited v Imarisha Mabati Limited [2018] eKLR was the courts’ first attempt to deal with industrial property protection for corrugated iron sheets widely used as roofing material known in Kiswahili as ‘mabati’. Although not clearly distinguishing between the aspects of industrial design and trade mark protection, the court was prepared to rule in favour of Royal and grant its application for a temporary injunction against Imarisha.

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Idea/Expression Murkiness: Court Ruling in Nation Media Copyright Suit over ‘LIT 360’ Simulcast Show

Lit360 Nation Media Group April 2018 31337776_588196948202537_5963395935391186944_o

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 [2018] 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.

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Mobile Developer Claims Copyright over Songa Music App by Safaricom, Radio Africa

Songa by Safaricom SongaMusic Radio Africa Facebook Kenya 27657099_536449873389869_8836242684635148261_n

The recently reported High Court case of Evans Gikunda v. Patrick Quarcoo & Two Others [2018] 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).

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Blind Opposition to Caller Ringtone Deal between Safaricom and Collecting Societies: High Court Case of Irene Mutisya & Anor v. MCSK & Anor

Robert Collymore CEO Safaricom

This blogger has recently come across Nairobi High Court Civil Case No. 262 of 2015 Irene Mutisya & Anor v. Music Copyright Society of Kenya & Anor. In this case Mutisya and another copyright owner Masivo have filed suit against Music Copyright Society of Kenya (MCSK) and mobile network operator Safaricom Limited for copyright infringement. The copyright owners filed an urgent application on 30th July 2015 for a temporary injunction to restrain Safaricom from remitting license fees to MCSK pursuant to a recently concluded license agreement for caller ring-back tones (CRBT) made available through Safaricom’s Skiza platform. The copyright owners also asked the court to restrain both Safaricom and MCSK from implementing the CRBT License Agreement pending the hearing of the application.

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Legality of Equitable Remuneration Challenged: High Court Petition of Xpedia & 4 Ors v. Attorney General & 4 Ors

equitable remuneration

Editor’s Note: On 31st July 2015, the urgent application in this Petition No.317 of 2015 dated 29th July 2015 was heard and certain interim orders were granted. A copy of the orders is available here.

This blogger has confirmed a recent media report that two content service providers and three copyright owners have jointly filed a petition challenging the constitutionality of the right to equitable remuneration under the now infamous section 30A of the Copyright Act. The Petition was filed against the Attorney General, Kenya Copyright Board (KECOBO), Kenya Association of Music Producers (KAMP), Performers Rights Society of Kenya (PRiSK) and Music Copyright Society of Kenya (MCSK).

As stated above, the crux of the Petition filed by Xpedia Management Limited, Liberty Afrika Technologies Limited, Elijah Mira, Francis Jumba and Carolyne Ndiba is that KAMP, PRiSK and MCSK should be stopped by the court from receiving or collecting royalties under section 30A of the Copyright Act in respect of works owned or claimed by the Petitioners.

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Litigation Imminent in “Equitel” Trade Mark Dispute: Equitel Insurance Agency v. Equity Group Holdings Ltd

Equitel SIM

According to media reports here, Finserve Africa Limited, a subsidiary of the multi-billion shilling Equity Group Holdings Ltd has been threatened with court action by Equitel Insurance Agency Ltd over the use of the name “Equitel” in connection with its telecommunication network operated using the now controversial ‘thin SIM’ technology. It is reported that Equitel has issued Equity with a cease and desist notice in which the former terms as unlawful the use of its trade mark which includes the name “Equitel” by Equity. Therefore Equitel has reportedly demanded that Equity desist from using the trade mark, including withdrawal of all publicity and advertising materials that contain this word.

In reply to Equitel’s claims, it is reported that Equity’s counsel stated in a letter as follows:-

“Our client is the proprietor of Equity Insurance Agency registered as such in 2007, to provide insurance services to its customers. Therefore, registration of Equitel Insurance Agency was targeted to misrepresent to the public that it was offering our client’s insurance services (….) The mere fact that your client may have been the first to register the trade name does not override the common law protection of the name, goodwill and reputation amassed by our client over the years”

In this connection, it is reported that Equity accused Equitel of using insider knowledge to set up its operations, given that it was an account holder at the bank and had first-hand experience of the services Equity Insurance was offering and, therefore, sought association in the registration of its own business name.

This blogger will be keenly following this dispute in the event the matter is not settled amicably and ends up before the courts for determination.