It was reported recently that a British firm had attempted and failed to register a trade mark for the kikoi fabric, an invention which we all know is distinguishably Kenyan.
A change in ownership of the service mark means a substantial loss of business for Kenyan entrepreneurs. Although the UK company was going to use the term “kikoy” in the business world, that is “diluting” the product’s commercial value.
This concern is even greater in the global and virtual world of the internet where goods are intangible and business transnational. In a borderless internet environment, issues of intellectual property rights (IPRs) are certainly complex.
Which country’s law do you apply in a dispute over a product’s name you have registered in one country and which someone is now using in another?
Trade marks, patents and copyrights are collectively referred to as intellectual property rights. They are legally protectable products of human creation even though in many cases there may be nothing much really “intellectual” about them.
Normally in order to register a patent, one must demonstrate that the product is something new (novelty) and non-obvious in the eyes of the public. Some jurisdictions require that the product or invention be useful, but this is no longer a critical requirement since standards and tests for utility vary from country to country.
The Kenya Industrial Property Institute (KIPI) is the designated government department or “patent office” in Kenya and therefore the institution that will fight for the glamour of our kikoi. From the information posted on their website, www.kipi.go .ke, and also the very description of their name, it is clear that the organisation’s emphasis is on traditional “industrial” products and not the new “information commodities”.
Up till now governments and businesses have focused on protecting the IPRs from tangible products displayed in the market place, but this is changing as information on the internet and products like computer software also become commodities to be sold and bought.
Of course, we know that we cannot protect scientific findings and laws of nature. Expressions can be protected, but it is hard to patent ideas. We cannot, for example, protect as copyrightable concepts ideas like “the world is flat” unless it is used outside the context of the reality of nature.
The Government is said to be pursuing the protection of the catch phrase, “grown under the sun” as a unique marketing gimmick for Kenyan products. It would be interesting to see the outcome of KIPI’s effort on this. We are told that we already lost the term “kiondo” to smarter fellows out there in the global village.
IPR wars have been raging online. In 2001, Amazon.com, the famous internet bookshop designed and registered its “1-click” concept that allows users to directly place orders without going through a lengthy transactional process.
BarnesandNoble.com came up with a similar aspect and called it “Express Lane”. Amazon went to court to have the rival firm remove the feature. Amazon got an initial injunction but lost when a court of appeal ruled that there was no valid patent infringement in the case (Amazon.com vs BarnesandNoble.com 2001).
Generally, intellectual property regulations on the internet tend to be more liberal than in those in the real world. This is because regulators do not want to stifle the growth of technology.
They are also in essence making considerations for e-commerce, the next mover of the internet. IPR lawsuits are complex and expensive and not many people go for them even when they feel wronged.
Other common disputes include the placing of “deep hyperlinks” that bypass the home page of a website, making the owner loser on front-page advertising.
It is impossible to waylay visitors from a popular website into a look-alike by creating a similar search capability (that is using the meta-tags or key search words of the popular site on the fake websites).
The World Intellectual Property Organisation (WIPO) is making efforts to protect technological content through the digital rights management information (DRM). The technology identifies the owner and sets out the terms for using a website, among other conditions.
Locally, it would be ideal to have a one-stop facility for registering business names offline and online (domain names).
New businesses should consider registering themselves simultaneously with the Registrar of Companies and at the Kenya Network Information Centre (Kenic), the local internet registry.
The virtual and the reality are becoming one and the same thing.
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