As intellectual property practitioners, we are often challenged that the public does not relate to the importance of having Intellectual property rights. For instance, whenever we converse with our colleagues in the legal profession, they ask why we are protecting big corporations at the expense of small traders. That Enforcing Intellectual Property Rights (IPR) is harassment of small traders struggling to make ends meet. However, is this the reality, or is it a mere misconception perpetuated so that the cartel of counterfeiters continues to strive?
Intellectual Property Rights (IPR) are broadly classified into the following categories: Trademarks, Patents, Copyrights, Trade Secrets, and Industrial Design. These rights offer limited monopoly user of them by the owner. By providing such incentives the IPR owners are able to recoup their resources and time used in coming up with the inventions or creations. Also, the incentives are an acknowledgment that the IPR(s) improve the welfare of the society.
In Kenya, Trademarks are protected for a period of 10 years which is subject to a continuous renewal after the expiry of the period. Patents are protected for a period of 20 years; Copyrights are protected for the lifetime of the owner of copyright works plus 50 years after the death of the owner; Industrial designs are protected for 5 years and after the lapse of the period are eligible for renewable for two further consecutive periods of 5 years.
The state corporations mandated to enforce IPR against criminal infringement are Anti-Counterfeit Authority (ACA)and Kenya Copyrights Board(KECOBO). The Anti-Counterfeit Act establishes ACA which focuses on counterfeiting making it a criminal offense to import, manufacture, sell, exhibit for sale, or possess counterfeit goods in the course of trade. Copyright Act, on the other hand, establishes KECOBO which is mandated with the enforcement of copyright and related rights. Other IPR Infringements fall under the armpit of civil wrongs such as the passing of, trademark dilution, piracy, and unauthorized use of an IPR which the IPR Owners can bring an action against the infringers.
Part of the unspoken Kenyan culture is the appreciation of brand names (Trademarks). Different brand names are associated with quality and are embedded in Kenyan households. For instance, OMO was used for a long time to refer to powder soaps, JOGOO for maize flour, EXE for wheat flour, PHOENIX for bicycles, etc. The association comes with products standing the test of time in terms of being fit for quality, the very aspect that Trademarks protection is built on.
They understand in their own terms that Trademarks are distinctive marks that identify goods and services from a competitor. They embrace inventions(patents) that provide new solutions in a technological field, for instance, MPESA Mobile Money Transfer; Artists are sought to grace events with their literary and artistic works which are copyrights; Kiondos (baskets) and Maasai bead pieces of jewelry are part of decorative articles used in various households because of their aesthetic appearance (industrial designs) and finally, Trade secrets such as the Coca-Cola recipe stands out because of the confidential information of the invention that is not known to the competitors.
This, therefore, shows that Kenyans appreciate IPR protection and are conversant with the rationale behind such creations, inventions, and innovations. They form part of their social and economic welfare. It thus goes without saying that the Enforcement of IPR(s) is pivotal in ensuring the enjoyment of such creations and innovations. Without taking such actions IPR infringement will go unchecked discouraging others to create new IPRs to the detriment of society.
For advice on how protect and enforce your IPR against infringement, kindly reach us on ipnoved@gmail.com or on +254 115 331 062.