Ignorance to blame for trademark violations

Kenya is reported to have one of the highest rates of intellectual property rights breaches across Africa.

This is probably due to the fact that Kenyans are enterprising and hard-working people.

What I find most shocking about people who abuse the intellectual property rights of right holders is that the abusers are not aware they are committing an offence.

They believe that they are earning an honest living and they see nothing wrong in infringing a registered mark.

The high rate of infringement may also be because of competition that exists among businesses in Kenya.

The rivalry is fairly high and it is quite easy for businesses to duplicate innovative ideas created by others.

But once there is an intellectual property right in place, it becomes illegal for competitors to duplicate the right holder’s ideas without seeking his consent.

Unfortunately, many people are unaware of this fact.

Majority of Kenya’s young adult population are well educated and have a high awareness level compared to most African countries.

I believe that this has contributed to the high level of infringement in the Kenyan market.

Most people in the urban areas are computer literate and can easily use their skills to infringe on well established trademarks and copyrights.

I believe that the high level of education, competition and enterprise amongst Kenyans coupled with a general ignorance and unawareness of intellectual property laws all play a factor in making Kenya one of the countries with the highest level of infringement in Africa.

My experience with infringement in Kenya has been interesting if not hilarious.

A few days ago I came across a restaurant that had infringed on a well known brand in Kenya known as Kenchic.

Kenchic is the premier local fast food chain and is arguably the best success story locally when it comes to restaurants.

Assuming that the Kenchic mark is registered, it consists of the word Kenchic and a logo of a chicken and the words “Kuku Mfalme” at the bottom.

The colours identifying the restaurant are also unique. I came across a restaurant calling itself Jenchic.

The restaurant colours were the same as the premier’s and, the infringement went as far as containing the logo of the chicken and the words “Kuku wetu” at the bottom.

Someone else told me of a restaurant in Mombasa calling itself Ken’s Chick.

The restaurant colours and logo were exactly the same as the premier’s.

Trademark infringement may seem funny and even ridiculous to the public especially when it involves a well known brand such as Kenchic but what most people do not know is that it is a most serious offence to infringe on a registered mark.

Trademark infringement involves a violation of the exclusive rights attaching to a mark and occurs where an infringer uses a mark that is identical or confusingly similar to a registered trademark.

This is especially so where the goods and services provided by the infringer are the same as those of the registered user.

In the Kenchic and Jenchic/ Ken’s Chick case, the infringers are in the same line of business as the right holder therefore making the burden of proof easier for the right holder.

The colours are the same, the logo is the same and the name is likely to cause confusion to the public eye.

Section 14 and 15 of our Trademark’s Act enables the holder of a registered mark to recover damages from infringers who use marks that are similar or almost similar to the registered mark with the likelihood of causing confusion to the consumer’s eye

In a leading Kenyan infringement case, Beiersdof AG versus Emirchem Products Limited; the holder of the trademark “ Nivea” was able to recover successfully from the infringer who produced a product known as “Nivelin.”

Both the plaintiff and the defendant manufactured petroleum jelly.

The plaintiff’s case was that the defendant produced his product “Nivelin” in such manner as to cause confusion in the consumer’s eye.

Property rights

The defendant packaged his product in a very similar package to the plaintiff’s and as a consumer you would be easily confused as to which is which.

The plaintiff recovered successfully against the defendant.

The rate of intellectual property rights awareness in Kenya is low compared to the level of ease through which intellectual property rights can be breached.

Something needs to be done and some public awareness carried out to ensure that the public is aware of the dangers of infringing on trademarks and other well known marks.

In a case such as the one above, the right holder can successfully and by court order halt the sale of goods containing infringed marks.

This means that the infringer will sustain high losses and it may be difficult for a struggling business to ever recover from such a blow.