According to World Intellectual Property Organization (WIPO), Intellectual Property refers to creations of the mind: inventions; literary and artistic works; and symbols, names, and images used in commerce. It can be divided into two categories:

  • Industrial Property includes patents for inventions, industrial designs, trademarks, and geographical indications.
  • The copyright covers literary works (e.g. novels, poems, etc.), movies, music, and/or any other artistic works.

As an investor, owner, or author of such intellectual property, you have rights and can prevent any person or entity from using your intellectual property without your permission along with giving due credit and even monetary compensation. One major advantage of having intellectual property getting registered is that your organization enjoys a better position among competitors.

Trademarks

A trademark is a mark or sign that distinguishes the goods of one entity from another.

The trademark may consist of one or more distinctive words, letters, numbers, drawings, pictures, signatures, colors, or a combination of all these. ServiceMark is a sign which serves to distinguish the services of one entity from another. It may consist of the same characteristics as those of a Trademark.

Any individual, company, partnership, or society can register a Trademark as long as they meet the necessary requirements. Registration of your Trademark gives you an exclusive right to that mark, it is evidence that the mark is yours and it affords you legal rights against others who may want to infringe your right to that mark.

Examples of Trademarks include Jogoo which is owned by Unga Limited, Toyota owned by Toyota Company. These marks have been registered by the respective companies and as such, they have exclusive rights to those marks.

Copyrights

Registering a copyright for your work whether literary, musical, artistic affords you exclusive right to print, publish, perform, or record any literary, artistic musical and authorize others to do the same. In Kenya, the law governing copyright is the Copyright Act and it makes it an offense punishable by fine or imprisonment to infringe on another person’s copyright. To whom can copyright be conferred?

  • an individual who is a citizen of, or is domiciled or resident in, Kenya; or
  • a body corporate which is incorporated under or in accordance with the laws of Kenya

What can be registered?

  • Literary work which includes:
    • novels, stories, and poetical works;
    • plays, stage directions, film sceneries, and broadcasting scripts;
    • textbooks, treatises, histories, biographies, essays, and articles;
    • encyclopedias and dictionaries;
    • letters, reports, and memoranda;
    • lectures, addresses, and sermons, but does not include a written law or judicial decision;
  • Musical work
  • Artistic works include:
    • paintings, drawings, etchings, lithographs, woodcuts, and prints;
    • maps, plans, and diagrams;
    • works of sculpture;
    • photographs;
    • works of architecture in the form of buildings or models
    • works of artistic craftsmanship, pictorial woven tissues, and articles of applied handicraft and industrial art;

The Kenya Industrial Property Institute (KIPI) is the body mandated with the registration of Trademarks:

  • Preliminary search: A search has to be conducted before applying for registration to find out if the Trademark can be registered or not. Registration will be rejected if the mark/sign resembles another registered Trademark. The relevant form is Form TM 27.
  • Application for registration of Trademark: The next step will be to make an application for registration. This is done in form of Form TM 2 and TM 32. For foreign companies to register their Trademarks in Kenya they have to appoint an agent in Kenya and as such, they will in addition to Form TM 2 and TM 32 require Form TM 1 for the appointment of the agent.
  • Examination stage: At this stage, the Registrar examines your application to ensure the correct documents have been filed and also your mark does not resemble any registered Trademark. An examination report is then issued, the report will inform you whether your mark has been approved for registration or not. If it has been approved you will be required to pay the advertisement fee and registration fee.
  • Advertisement stage: If the Registrar approves the mark for registration he will instruct you to pay an advertisement fee. The mark will then be advertised in the Kenya Industrial Property Institute (KIPI) journal for 60 days to allow any person opposed to the registration of your mark to raise their objection. If no opposition is raised, it proceeds to registration. If an opposition is raised, however, a notice of opposition in the form of Form TM 6 is filed and opposition proceedings begin.
  • Registration: This is the final stage in the registration process, if no opposition is raised upon advertisement, the application will be registered and the Registrar will issue a certificate of registration of the Trademark.

Copyrights

  • The work must be of original authorship.
  • The work should also be intangible format, including digital format
  • Two copies (one if in digital format) of the work should be submitted with the application form
  • Application forms duly filled and commissioned by a Commissioner of Oaths

Procedure:

  • Submit the filled application form accompanied with the registration fee.
  • A certificate will be issued if the application is successful.

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