Society

Alaa! Can one claim words in public use?

Cotu boss Francis Atwoli

Cotu boss Francis Atwoli. FILE PHOTO | NMG

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Summary

  • A trademark is a distinctive sign, word, shape, logo, sound and even smell that distinguishes a good or service from another and associates the same to the proprietor.
  • It is a property right protected by law, meaning that action can be taken against those who use the same in an unauthorised manner, among other property rights.

You most likely own any one of the following. A television, a mobile phone and are likely to be signed up on Netflix.

Have you ever noticed that when you switch on your phone, for example, there is a distinctive sound that it makes depending on the make of the phone? The same applies to the entertainment company Netflix.

When you switch on Netflix, a distinct sound helps you identify the video streaming platform.

All of these examples could be protected under intellectual property laws. They are part of an emerging class of trademarks known as “sound marks”.

A trademark is a distinctive sign, word, shape, logo, sound and even smell that distinguishes a good or service from another and associates the same to the proprietor.

It is a property right protected by law, meaning that action can be taken against those who use the same in an unauthorised manner, among other property rights.

Last week, leading trade unionist Francis Atwoli sought to register the words “Alaa, Alaa, Alaa!” that he commonly uses in public speeches.

Celebrities and public figures often have creative slogans they use when addressing crowds. As we go into an election year next year, we will be witnessing a lot of these slogans from politicians.

In the last election, there were many slogans specific politicians used. Most of them do not have any prescribed meaning and are often a creation of the users.

The question is, can intellectual property rights be granted to such slogans? What about slogans used by other celebrities and public figures such as preachers and musicians?

In the case of Mr Atwoli, “Alaa” as a word does not have a prescribed meaning. However, it is commonly used in Kenya. Whether it is a Kiswahili word or Sheng word used in urban areas remains unclear.

However, what is clear is that it is a word commonly used by most urbanites in Kenya. The meaning prescribed to it may be similar to that ascribed to the English slang word “duh”.

Therefore, can a person claim intellectual property rights over words that are in the public domain? The probable answer is no. We wait to see how the trademark office will handle Mr Atwoli’s application.

The Kenyan trademark law does not yet recognise distinctive sounds as part of what can be trademarked. It is indeed true that how Mr Atwoli pronounces “Alaa” is unique.

If Kenya had a provision for sound marks, perhaps the applicant would have made a sound mark application.

The “Alaa!” application brings to fore the need for Kenya to amend the current trademark laws to cater for new developments.

Most companies are taking branding very seriously and are increasingly adopting new strategies to distinguish their brands.

Some companies may wish to adopt distinctive sounds to distinguish their products and services.

There are already some corporate jingles by Kenyan companies. For example, most TV shows have jingles.

Many businesses will soon be using jingles and other sounds in their branding strategies. It is, therefore, important to update the trademark laws to cater for these new developments.

Similarly, some countries allow the protection of colours so unique that they can only be associated with a certain product. For example, Cadbury purple and Barbie pink are protected colours.

This is a call for consideration to amend the trademark laws to cater for the emerging trends.

I would say, “Alaa!” it is time to amend the law!