Kenya’s Leading IP Professionals According to 2015 Edition of World Trademark Review 1000

wtr1000logo

“As more and more companies look to Africa for strategic growth, and as intellectual property (IP) becomes increasingly important to the continent’s economic agenda, trade mark activity in Kenya – the gateway to the East African market – has flourished.” – World Trademark Review 1000 – The World’s Leading Trademark Professionals.

In a previous blogpost titled “Fading Giants and Rising Stars: Opinion on Performance of Intellectual Property Law Firms in Kenya”, we considered some eleven Kenyan law firms known to have established IP practices, namely Kaplan & Stratton Advocates (K&S), Hamilton Harrison and Mathews Oraro Advocates (HHM Oraro), Iseme Kamau & Maema Advocates (IKM), Ndungu Njoroge & Kwach Advocates (NNK), Coulson Harney Advocates (CH), Daly & Figgis Advocates (D&F), Gichachi & Company Advocates (G&C), Simba & Simba Advocates (SS), J.K Muchae & Company Advocates (JKM), CFL Advocates (CFL) and Muriu Mungai & Company Advocates (MMC Africa). From the data presented, it was clear that the erstwhile dominance of K&S has receded with CH leading the way in trade mark prosecutions.

WTR 1000 2015 Firm Rankings kenya This week the 2015 World Trademark Review 1000 rankings were published online here. These WTR 1000 rankings confirm this blogger’s view to the effect that “heightened competition has raised standards even higher across the board.” Nine firms made it to this year’s WTR 1000 list ranked as follows: 1. CH (Gold); 2. IKM (Gold); 3. K&S (Gold); 4. CFL (Silver); 5. D&F (Silver); 6. HHM Oraro (Silver); 7. MMC Africa (Silver); 8. NN&K (Silver) and 9. S&S (Silver).

Among the three Gold Band firms in Kenya, CH’s review is the longest and most praiseworthy. The first two sentences alone of CH’s review contain a litany of superlatives like “unmatched”, “frontrunner” and “brightest” while CH’s Head of IP, John Syekei is described as “enormously popular throughout the region”. Syekei is once again ranked in the Gold Band of WTR 1000 Individuals behind IKM’s William Maema and K&S’s Peter Hime, who remains the top ranked IP professional in Kenya.

With its recent merger, HHM Oraro has become the largest firm in Kenya (17 Partners) and now has a whooping total of about ten (10) IP-savvy lawyers on its roster. This blogger expects HHM Oraro to attain the coveted Gold Band ranking if the merger is able to capitalise on its size and expertise to secure consistent big ticket commercial IP work. HHM Oraro’s swanky new website is available here.

It is impressive that CFL is ranked first among the Silver Band firms, which is truly a testament to the outstanding job being done by IP Partner Lorna Mbatia. Mbatia is credited with building “excellent relations with a raft of prominent US law firms, as well as top players in South Africa” which has made CFL “one of the fastest-growing trademark practices around.” According to WTR 1000 sources, Mbatia “has forged close ties with key personnel at different IP registries across East Africa; as a result, she is a great choice for clients with regional requirements.”

MMC Africa’s review stands out among all other ranked firms given its creative approach to IP practice. According to WTR 1000 sources, MMC has moved from being “reliant on instructions from foreign companies” to “fielding requests from an increased number of locals, thanks to its extensive non-billable work in educating domestic entities on the importance of trademark protection”. MMC’s IP Team is led by Nancy Karanu who is credited as an “effective motivator of her team” and “forward-thinking associate” Peter Kamero. Kudos to MMC’s Kamero who is the only Associate in the WTR 1000 Individuals rankings.

WTR 1000 2015 Individuals Rankings Kenya

This blogger wonders whether D&F, a newcomer on the WTR 1000 list, will survive the fierce competition among IP law practices. In this regard, many will recall the exodus of four key partners from D&F to CH in late 2014, including Njau Mukuha who is cited by the WTR 1000 as the Partner who “oversees the IP practice” at D&F. As D&F regroups, the three-way contest between indigenous firms NNK, G&C and SS will continue for the top spot among the Silver Band law firms.

The Jubilee Government – One Year Later: Waiting for the Intellectual Property Organisation of Kenya

gado editorial cartoon April 10 2014 daily nation

As many readers may know, the Jubilee government of President Uhuru Kenyatta, his Deputy William Ruto and his Cabinet mark the end of their first year in office this month. To this end, Gado’s comic in today’s Daily Nation newspaper depicts Kenyatta and Ruto being accused of copyright infringement by the immediate former president Kibaki. The message is clear: the Jubilee government is literally singing the same tune as the previous government.

As this blogger has previously noted, Kenyatta has been very supportive of the creative economy and has on several occasions reiterated his administration’s commitment to creating a conducive environment for creators to reap from their intellectual property (IP) assets. However, Kenyatta’s lasting mark on IP in the past year was the decision to reform all state corporations and parastatals in Kenya which has set in motion plans to merge the copyright office, the industrial property office and the anti-counterfeit agency into one national IP office. (See this blogger’s comments on the merger here and here).

According to recent media reports, the heads of the various government parastatals spent the month of March at the Kenya School of Government deliberating and making recommendations to the Jubilee Government on the best ways to merge the various state agencies across the various sectors, including intellectual property administration and enforcement. Unconfirmed whispers received by this blogger indicate that the proposed name for the new IP body is the Intellectual Property Organisation of Kenya (IPOK) which will be composed of three directorates (Copyright and Related Rights, Industrial Property and Anti-Counterfeit). This new body, IPOK, will be run by a Director-General, much like the African Regional Intellectual Property Organisation (ARIPO) or the World Intellectual Property Organisation (WIPO).

Regardless of the new IP body’s format, it is clear that members of the Jubilee Cabinet will play a crucial role to ensure that this body functions smoothly and delivers on the expectations of Kenyans. In particular, the Cabinet Secretaries in charge of Industrialisation, Justice and Culture will play the greatest role to midwife and steer the operationalisation of the proposed IP body. In a recent publication titled “Cabinet Scorecard”, the Star newspaper used the following rating to gauge the performance of the Jubilee Cabinet over the past year:

“A. You are doing an excellent job

B. Good, but room for improvement

C. You are okay

D. Get your act together

E. Resign

F. Please fire him, Mr President”

According to the Star, no member of the Executive obtained an “A” grade with Kenyatta being the highest scorer with a “B” grade. The Cabinet Secretary for Industrialisation, Adan Mohammed was among the lowest scorers with a “D” grade.

The scorecard reads in part:

“A year later, no one can say with certainty whether he [Mohammed] has done anything let alone inspire change. Nothing much has been heard of his ministry and nothing has reverberated on the ground from the golden touch everyone expected from him…It is no surprising therefore that in the ministry’s website, only three events appear in the “news and events” category one year later.”

Many will recall that Mohammed’s docket is the parent ministry for two out of the three IP agencies to be merged, namely the Kenya Industrial Property Institute (KIPI) and the Anti-Counterfeit Agency (ACA). Furthermore, it is widely speculated that the Industrialisation Ministry may be charged with direct oversight and supervision over the new IP body.

As the Jubilee government enters the second year of its administration, this blogger will continue to review the highs and lows of the Executive, including the current national IP offices, in promoting, supporting and protection the IP rights of the Kenyans.

Why Private Copying Law and Practice in Kenya is Unconstitutional

50 bob movies by wamathai dot com

Private copying can be defined as the act of making any copy for non-commercial purposes by a natural person for his/her own use. Kenya’s Copyright Act defines it as the making of a single copy for the personal and private use of the person making the copy. Although the right of reproduction under copyright law is exclusive, Kenya is among many jurisdictions worldwide that limit the application of the reproduction right to activities that can be qualified as private copying, the reasoning being that it is practically impossible to grant permission to large numbers of individuals, or to monitor the use consequently made of it. It follows that private copying is allowed under the condition that a fair compensation is paid to the authors and other rights holders for loss of revenues or harm caused to the rights holder whose work had been copied. Private copying levy (or the audio blank tape levy as it known in Kenya) is currently the only efficient mechanism which allows creators to be compensated for widespread copying of their works for private/domestic use. It therefore follows that the blank tape levy would be applicable to blank CDs, tapes, cassettes, DVDs, VCDs, USB Disks, MiniDiscs, Memory Cards, Mobile Phones among others. It is yet to be operationalised in Kenya despite being provided for under section 28(3),(4),(5) and (6) of the Copyright Act.

In December 2013, this blogger discussed here that one of the proposed amendments to the Statute Law (Miscellaneous Amendments) Bill, 2013 related to the provisions of audio blank tape levying provided under Section 28(5) of the Copyright Act. The effect of this proposed amendment was that the blank tape levy be collected by KECOBO and then distributed to the registered CMO representing the owners of sound recordings, currently known as the Kenya Association of Music Producers (KAMP). However, this blogger argues that this section 28 (in both its current and proposed form) is unconstitutional and ought to be fundamentally amended so as to address the economic rights of all rights holders.

The WIPO International Survey on Private Copying Law and Practice 2012 explains that where private copying remunerations are gathered by collective management organisations (CMOs), these societies are appointed by the government or by rights holders. According to the Survey, these CMOs must be representative of each variety of rights holders namely the authors, performing artists and producers. In some jurisdictions, a distinct CMO exists dealing solely with private copying levy and the board of such a CMO is comprised of the various rights holders’ representatives.

From all the 30 countries selected for the Survey, it is clear that there are two main categories of rights holders who benefit from the royalties collected for private copying: copyright holders and the related rights holders. The copyright holders appear to take the lion’s share of the collections with countries like Switzerland and Canada recording an authors’ share of 58%. All in all, the share for copyright holders appears never to be less than 30%.

Meanwhile, back in Kenya, the related rights CMO representing sound producers (KAMP) has recently published a public notice on it’s official website which reads in part:-

“The Kenya Association of Music Producers and Performers Rights Society of Kenya Stakeholders Meeting on Blank Media Levy concluded by setting an unopposed tariff of 6% of import price at the point of sale on the aforementioned equipment. KAMP and PRISK by virtue of Sections 28 (5) and 30 (8) will commence collections May of 2014.”

According to section 28(4) of the Act, the royalty payable for private copying can only be set in one of two ways: through agreement with stakeholders or by the (non-existent) competent authority. The question which therefore must be asked is which one of the two ways was used and what was the rationale behind the percentage figure of 6% purportedly agreed upon pursuant to the Act.

Assuming that the conditions of section 28(4) of the Act have been met, it would follow that the audio blank tape levy would only be applicable to KAMP and not PRiSK. This is because the section refers only to audio recording equipment and audio blank tape and not video. In addition, according to the WIPO Survey, the only jurisdiction with a tariff of 6% (of the import price) is Lithuania and this tariff covers both copyright and related rights holders, as illustrated in the table above.

However there is a fundamental question which remains unanswered, namely: is the current private copying levy provision under section 28 constitutional? The blogger argues that the answer must be no. In all the countries studied in the WIPO Survey above, copyright holders were allocated a substantial share of collections from the respective private copying levies. However, the Kenyan Act only refers to owners of sound recording. It is therefore possible to argue that section 28(3),(4),(5) and (6) are unconstitutional for two cardinal reasons, namely the discrimination of rights holders contrary to Article 27 of the Constitution and the deprivation of property contrary to Article 40 of the Constitution.

Defence of Prior Use of Anterior Mark Under Trade Mark Law

INFINITY TM TYRES

Under both the Kenyan and South African Trademark Acts, there are several provisions which limit the right to the use of a trade mark granted by registration. For purposes of this blogpost, let us consider the provision of section 10 of the Kenya Trade Mark Act and its equivalent section 36 in South Africa’s Trade Marks Act. This provision, referred to in Kenya’s Act as the Saving for vested rights, creates a defence against trade mark infringement claim by a trade mark owner.

In a recent South African case of Etraction (Pty) Ltd v Tyrecor (Pty) Ltd (16926/11,16926A/11) [2014] ZAWCHC, a dispute arose over the trade mark INFINITY registered by Etraction in Class 12 in respect of “vehicle components and accessories; tyres, wheels, rims”. Etraction was therefore seeking an interdict to restrain Tyrecor from infringing its trade mark.

In its defence, Tyrecor argued that its predecessor in title had commenced using the trade mark prior to Etraction applying for registration of INFINITY in its own name. In this regard, the court accepted that the aim of the statutory defence relied upon by by Tyrecor was to “preserve common law rights that are antecedent to the rights of the registered proprietor”.

After reviewing the submissions of the parties, the court found that Tyrecor could not be restrained from using INFINITY since it had made continuous use of INFINITY since July 2006 and before the Etraction’s application for registration was accepted on 15th April 2008.

Comment:

In order to discharge the onus of proving an earlier right under Section 10 of the Kenya Trade Marks Act, it must be demonstrated that the use of a trade mark would amount to passing off or infringement of another earlier right. This reasoning has been cited with approval in the case between Trans-National Bank Limited vs Equity Bank Limited where Trans-National opposed Equity’s application for registration of “fanikisha” before former Registrar of Trade Marks, Prof. Odek. A copy of the Registrar’s decision is available here.

In the “fanikisha” case, the Registrar interprets Section 10 of the Act to the effect that an anterior mark is:

(i) an earlier mark having an earlier application date taking any priority into account or
(ii) an earlier registered mark or
(iii) if unregistered, an earlier mark that exists by virtue of continous use under Section 5 of the Act or
(iv) is an earlier well known trademark.

In the case of where the anterior mark is unregistered, the Etraction case is significant as it demonstrates that the availability (or lack thereof) of an action for passing-off is an important determinant of whether reliance can be placed on the defence. In the present case, Tyrecor successfully argued that Etraction’s abandonment of the possibility of a passing-off action strongly indicated that Etraction recognised that it had no exclusive right to INFINITY prior to its application for registration.

Another important finding from the Etraction v. Tyrecor case is in relation to the “predecessor in title” option in the defence. In the present case, Tyrecor claimed that it was the successor of an entity known as Falck Trading (Pty) Limited, a company which it took over in 2009. However, Tyrecor did not adduce any formal documents or agreements before the court relating to the take-over of the business. Nonetheless, Tyrecor claimed that the take-over was done verbally due to the common shareholders and directors of both the predecessor and successor.

Despite the absence of documentation relating to the transfer of business from Falck to Tyrecor, the court held that Tyrecor is still entitled to the defence of anterior use. The court stated, as follows:

I am persuaded that there was a transfer or an assignment of rights and obligations between the predecessor and successor in relation to the import and sale in INFINITY branded tyres. That [Tyrecor] appears not to have a written contract in its possession or that relevant provisions of the Companies Act have not been complied with, does not vitiate such a transfer of rights and the [Tyrecor] faces sanctions embodied in the Companies Act. However, it does not in my view affect the [Tyrecor]’s defence available in terms of Sections 36 of the Act.

Revisiting Section 30A of the Copyright Act: Right to Equitable Remuneration for Performers and Producers

eric

“For many years Kenyan composers and authors have received royalties from the broadcast or public performance of their songs. These royalties are collected by the Music Copyright Society of Kenya (MCSK).
The Copyright Act has since been amended to acknowledge the essential contribution of performers and producers of sound recordings in the creation of recorded music and works by including a right to equitable remuneration for both the performers and producers, which is in line with international best practices. The rights to equitable remuneration are the rights of performers and producers to be paid fairly for the broadcast and communication to the public of their works.” – Performers Rights Society of Kenya (PRiSK)

In 2012, the Copyright Act was amended with the insertion of a new provision, section 30A which introduced the right to equitable remuneration for use of sound recordings and audio-visual works. This blogger has discussed this section in several blogposts available here, here and here.

In a recent article, intellectual property (IP) lawyer Judy Chebet argues here that section 30A is unconstitutional as it obliges performers and music producers to cede some of their rights to collective management organisations (CMOs). While this blogger fundamentally disagrees with Chebet, it is argued that her views raise serious concerns that must be addressed by the Kenya Copyright Board (KECOBO) and the related rights CMOs both of whom play an important role in explaining to the Kenyan public (in a fair amount of detail) exactly “what section 30A is all about”.

Copyright and related rights are bundles of different rights which can be exercised individually or, where for practical purposes it is very difficult to enter into individual arrangements, can be managed by collective management organisations (CMOs). Because of the uses to which sound recordings and fixations of performances are traditionally put, collective management has become an indispensible method by which performers and producers can be remunerated for the uses of their performances or recordings.

Both Article 12 of the Rome Convention and Article 15 of the WIPO Performances and Phonograms Treaty (WPPT) give performers and producers of sound recordings a right to a single equitable remuneration for broadcasting and communication to the public. In most CMOs this will be the great bulk of the collectable remuneration.

The WPPT goes on to provide that the contracting parties may establish in their national legislation that the single equitable remuneration shall be claimed from the user by the performer or by the producer or by both. The single equitable remuneration may be shared by agreement or domestic legislation may provide how the remuneration must be shared.

Given this modern environment it has started to make more sense for the activities of performers’ and producers’ CMOs to be merged into one organisation; the users are the same and the remuneration has to be shared so that it can be more efficient for one organisation to collect and to manage the distribution of the remuneration to the different parties. The efficiencies also benefit the user who only has one organisation to pay. Even in cases where there are two separate CMOs, they can collect jointly but distribute separately. This is the case for instance in Kenya with Kenya Association of Music Producers (KAMP) or even the case of Sweden with SAMI and the Swedish Group of IFPI. In the Kenyan context this blogger has previously discussed the amalgamation of KAMP and PRiSK here.

Therefore, to the extent that Chebet argues section 30A creates a conflict with the WPPT in that the latter does not allow compulsory licensing, this blogger concurs fully with Chebet. However, the point of departure with Chebet’s views is that this form of mandatory collective management through compulsory licensing amounts to a limitation of Article 40 of the Constitution (Protection to right to property) that is not in accordance with Article 24 (Limitation of rights and fundamental freedoms).

Compulsory licensing is the term generally applied to a statutory license to do an act covered by an exclusive right, without the prior authority of the right owner. This concept of compulsory licensing in copyright is derived from patent law, where the owner is forced to face the competition in market, similarly in copyright law; the copyright holder is subjected to equitable remuneration. One of the main reasons for introducing non-voluntary licenses is where the users of certain works have access to these works on terms which are known in advance and it is not practicable for them to locate right owners and obtain an individual license from them.

According to copyright scholars, legislative arrangements for equitable remuneration occupy a position on the continuum of copyright and author’s right somewhere between exclusive rights and absolute exemptions. In strictly economic terms, these arrangements reflect the legislator’s judgment that to extend an exclusive right would hamper socially important uses, typically because of the high transaction cost of negotiating a license, but that to make the use entirely free would seriously impair needed rewards for the author. Compulsory licenses trade the bargaining power conferred by the prospect of injunctive or other coercive relief for a monetary award aimed at approximating the sum a reasonable licensee would in good faith offer and a reasonable copyright owner would in good faith accept.

Article 9(2) of the Berne Convention provides the legal basis for compulsory licensing in copyright law. The Article reads:

“It shall be a matter for legislation in the countries of the union to permit the reproduction of such works in special cases, provided that such reproduction does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.”
This provision provides the Convention’s exclusive basis for equitable remuneration and provides for the conditions which should be met before a member country can entirely excuse a use which includes the equitable remuneration and not prejudicing the reasonable interests of the author. Therefore this Article provides the so-called three (3) step test for compulsory licensing, namely exceptional circumstances, no conflict with the normal exploitation of the work and no unreasonable prejudice to legitimate interests of the author.

Article 11 bis (2) provides that:-

“It shall be a matter for legislation in the country of the Union to determine the conditions under which the rights mentioned in the preceding paragraph [11 bis (1)] may be exercised but these conditions shall apply only in the countries where they have been prescribed. They shall not in any circumstances be prejudicial to the moral rights of the author, nor to is right to obtain equitable remuneration which in the absence of agreement, shall be fixed by competent authority.”

Therefore in order for Chebet’s unconstitutionality argument to succeed, this blogger submits that the enactment of section 30A must be proved to be a violation of the Berne 3-step test in a manner that unreasonably and unjustifiably limits the rights enshrined under Article 40 as set out in Article 24.

Meanwhile, this blogger reiterates that the real elephant in the room is the government’s regulatory role vis-a-vis equitable remuneration.

In the UK, the Copyright Tribunal established under the Copyright, Patents and Designs Act, 1988 is empowered to determine the amount of equitable remuneration payable to performers where commercially published sound recordings of their works are performed or communicated to the public. In Australia, the Copyright Tribunal, established under the Copyright Act 1968, is similar in the scope of its jurisdiction to the 1988 UK Tribunal, including determination of remuneration to be paid in respect of certain uses which are subject to compulsory licenses.

In the US, the US Copyright Act 1976 created a Copyright Royalty Tribunal comprising five government-appointed Commissioners with a Chairman appointed annually. The Tribunal’s jurisdiction includes determining royalty rates payable under certain compulsory licenses, and the distribution of royalty fees deposited with the Register of Copyrights in respect to those compulsory licenses.

Meanwhile here in Kenya, the Competent Authority established under section 48 of the Act remains non-existent over a decade since the establishment of the Kenya Copyright Board (KECOBO). This situation is problematic as there are no mechanisms in place to monitor the practical implementation of the compulsory licences under section 30A.

Protection of Well Known Marks in Kenya

On this subject of well known marks, this blogger invites readers to listen to audio recordings of the presentations made by KIPI trade mark examiners during a workshop held in January 2014 available here. Readers may also wish to download Caroline Muchiri, Advocate’s powerpoint presentation made in February 2014 available here.

Below are my reactions (in bold) to some of the issues addressed in Caroline’s presentation

Read the full article here.

Intersections between Intellectual Property, Consumer Protection and Competition Law in Kenya

quail

Editor’s note: This article is a commentary on the LSK CLE on Competition and Consumer Law on Feb 8, 2014 at the Hilton, Nairobi. Audio recordings of the various presentations made during the CLE have been uploaded here.

From an intellectual property (IP) perspective, the enactments of the Competition Act, 2010 and the Consumer Protection Act, 2012 have played a major role in balancing the interests of IP owners and IP users in Kenya. The Competition Act is a broad piece of legislation as it seeks to promote and safeguard competition in the economy whilst protecting consumer rights. The Consumer Protection Act was enacted with a view to consolidate various consumer protection provisions scattered in several pieces of legislation. In this regard, the 2012 Act governs the protection of the consumer and aims to prevent unfair trade practices in consumer transactions.

In this discussion of how IP intersects with consumer protection law and competition law, the point of departure is the Constitution of Kenya, 2010. The rights of the various categories of IP rights holders are guaranteed under Article 11, 40 and 69 of the Constitution, whereas the rights of IP rights licensees as users are guaranteed under Article 46 of the Constitution.

However it is important to note that, under Article 24 of the Constitution, none of these rights enshrined in the Bill of Rights are absolute in nature. This Article provides that a right in the Bill of Rights can be limited by law where that limitation is reasonable and justifiable in an open and democratic society, taking into account certain factors relating to the nature, extent, importance and purpose of the limitation.

In this connection, it is submitted that the Competition and Consumer Protection Acts introduce several limitations to the rights of IP owners, discussed below.

In the Competition Act, restrictive trade practices are defined to include any agreement, decision or concerted practice which amounts to the use of an intellectual property in a manner that goes beyond the limits of legal protection. However the Act provides for the grant of exemption for certain restrictive practices in respect of intellectual property rights. This blogger wonder whether de jure monopolies such as collective management organisations would be required to apply and obtain such exemptions.

In addition, the Act defines the abuse of dominant position to include abuse of an intellectual property right. This latter point is discussed by Guserwa, SC at 4:37 in the audio recording below, labelled: “Competition Law Issues in the Legal Profession”.

With regard to the provisions on extra-territorial operation and mergers in the Act, it is important to note the use of the word “asset” which is defined in section 2 as follows:

” “asset” includes any real or personal property, whether tangible or
intangible, intellectual property, goodwill, chose in action, right, licence, cause
of action or claim and any other asset having a commercial value;”

Another important section of the Act is part VI which deals with consumer welfare. This blogger submits that these consumer welfare provisions may have the effect of limiting some of the rights enjoyed by IP owners. These provisions are further enhanced by the Consumer Protection Act. Therefore it is noteworthy that the provisions in the Competition Act relating to false or misleading representations and unconscionable conduct are covered in the provisions relating to unfair practices under the Consumer Protection Act.

From an IP perspective, the consumer law provisions in these two Acts interact with IP at both international and national levels. At the international level, these consumer law provisions give effect to Kenya’s obligations under the Article 10bis of the Paris Convention. These obligations are reinforced by Article 2 of the TRIPs Agreement. At the national level, these consumer law provisions give effect to three IP legislations, namely the Copyright Act, the Trade Marks Act and the Anti-Counterfeit Act. In this context, this blogger argues that the definition of “supplier” in the Consumer Protection Act is broadly defined such that it includes owners of IP rights. Therefore the obligations and duties imposed on suppliers can therefore be extended to IP owners in their normal course of trade.