A Comprehensive Look at Intellectual Property Rights recognised under Kenyan Law

Intellectual Property (IP) rights are the backbone of innovation, creativity, and economic growth by giving legal protection to original works, inventions, and brand identities.

In Kenya, the legal framework for IP rights is well established, with various laws and regulations that protect the interests of creators and innovators. From copyrights and trademarks to patents and industrial designs, Kenyan law recognises a wide range of IP rights so that individuals and businesses can protect their intellectual property.

In this article, we take a comprehensive look at what intellectual property is, and the key IP rights recognized under Kenyan law, their significance, provisions, and enforcement.

What is Intellectual Property?

Intellectual Property (IP) is a creation of the mind that has commercial value i.e. inventions and innovations. The main difference being: -

• Invention –coming up with a new scientific or technical idea i.e. M-Pesa a mobile-based financial transactions service.

• Innovation –translating the invention into a valuable good or service i.e. M-Shwari, a mobile-based savings and loan service.

Intellectual Property is divided into:-

1. Industrial Property – Trademarks, geographical indications, trade secrets, industrial designs, utility models and patents;

2. Copyright - Literary and artistic work such as poems, novels, music, painting, and computing code; and

3. Plant breeders’ rights – New varieties of plants.

   
   

What is the purpose of Intellectual Property Rights (IPR)?

The existence of IP gave rise to the need for IPR, which grants exclusive rights to the creators of the IP to protect access to and use from unauthorized third parties.

Who can own IPR in Kenya?

IPR can be owned by individuals, businesses, or other entities. The ownership of the IPR can arise in the following ways:

1. Individuals: When an individual writes a piece of music or creates original content i.e. artwork, they automatically own the copyright to their work without having to register the same. However, registration benefits the creator should any conflict arise.

2. Employers: If an employee invents or creates something during their employment or independent contractor, within their scope of duties, the employer or person who commissioned the work automatically owns the rights to that intellectual property in the absence of contractual provisions to the contrary.

3. Business Entities: Business Entities can own IPR in relation to their products and services for the specific business they are conducting and such rights are valuable assets which contribute to a company’s brand and market position.

4. Joint Venture: IPR can be jointly owned by multiple individuals or entities when they collaborate on a project and the ownership of such IPR are defined in legal agreements.

5. Acquired IPR: Individuals or entities can acquire IPR by purchasing, licensing, or through mergers and acquisitions.

What is the Importance of IPR?

1. Competitive Advantage: IPR helps your business stand out, which makes your innovations easily recognizable to customers.

2. Finding Investors: Investors prefer businesses with strong IP protections, which makes it easier to secure funding.

3. Revenue: Licensing and franchising your IPR creates additional income streams.

4. Legal Support: Kenyan laws have set up systems to enforce IP rights which ensures legal protection through institutions such as the Industrial Property Tribunal and the Copyright Tribunal.

5. Global Expansion: IPR are protected globally through organizations like the African Regional Intellectual Property Organization (ARIPO) and the World Intellectual Property Organization (WIPO) which encourages global business growth.

6. Encouraging Innovation: the evolving IP framework, which encourages and rewards innovators, has driven further research and development across various sectors.

7. Increasing Business Value: IP assets increase your business’s value and the same can be passed down or sold as a legacy which ensures a lasting impact.

   
   

What are the various IPR in Kenya and how are they registered?

IPR	Definition	Governing Law	Registration Process	Validity period
Trademark	A unique sign, symbol, or name used to identify and distinguish products or services i.e. the M-Pesa logo and branding	Trade Marks Act, Cap 506	Conduct a Search at the Kenya Industrial Property Institute (KIPI) to check if your desired trademark is already registered. This is optional but recommended. Submit Form TM2 to KIPI with details of your trademark and pay the application fee. KIPI reviews your application to ensure it meets the requirements. If approved and once pay the advertisement fee, the trademark is published in the KIPI Journal for 60 days to allow objections from the public. If no objections are raised during the 60-day period and once you pay the registration fee, your trademark is officially registered, and you receive a certificate.	Ten (10) years
Copyright	Protects creative works such as books, music, and software i.e. Lifestyle - Bien.	The Copyright Act, 2001	Go to the Kenya Copyright Board (KECOBO)  website and sign up for an account. Log in to your account, select the type of work i.e. music, book or software and fill in the ownership details. Upload a digital copy of your work in the required format i.e. PDF or MP3. Verify all details and submit your application along with the required fees. If approved, you will receive a downloadable certificate within 7 days via email or your account. If the application is rejected, KECOBO will email you the reasons for rejection and next steps.	the life of the author plus 50 years. If the author is unknown, 50 years from the date it is published.
Patent	Grants exclusive rights to an inventor for a new product or process i.e. a solar-powered irrigation system	Industrial Property Act, 2001	Gather all necessary details about your invention, including technical descriptions, drawings, and claims. File your application at KIPI or vide a licensed patent agent. The application is examined to ensure it meets the requirements. If there are errors found or missing information, you may be asked to correct or provide the same. If the application is approved, after 18 months, the same is published in the Kenya Gazette or KIPI Journal to inform the public. If the application is approved, and all fees are paid, KIPI issues a Patent Certificate. If rejected, you may appeal the decision through the Industrial Property Tribunal.	20 years from filing date subject to payment of annual fees.
Plant Breeders’ Rights	Protects new plant varieties developed by breeders i.e. improved tea varieties like TRFK 6/8 by the Tea Research Institute.	The Seeds And Plant Varieties Act (Cap 326)	Submit an application form to the Kenya Plant Health Inspectorate Service (KEPHIS) with details about your new plant variety and its proposed name. The application is reviewed and in the event that additional information or evidence about the plant variety is required, the same is requested. If the application is accepted, it is published in the Kenya Gazette for 60 days to allow public objections. If no objections are raised, you are granted a Plant Breeders' Rights Certificate.	Twenty (20) years from the date of the grant and in respect of trees and vines Twenty-Five (25) years from the date of the grant subject to payment of annual maintenance fees.
Industrial Designs	Protects the unique appearance of a product i.e. Unique beadwork patterns by Kenyan jewelry designers.	Industrial Property Act, 2001	Gather details about your design, including drawings, photographs, and a description of its unique features. File your application at KIPI and pay the required fees. The application is reviewed to confirm it meets the requirements. Once approved, the design is published in the Kenya Gazette for 60 days to allow for objections from the public. If no objections are raised, the design is registered and you are issued with a Certificate of Registration.	Five (5) years
Utility Models	Protects small, practical innovations with less stringent novelty requirements i.e. the improved jiko (energy-efficient stove) design	Industrial Property Act, 2001	Gather the necessary details about your innovation, including specifications, drawings, and a brief description of how it works. File your application at KIPI and pay the required fees. The application is examined to identify any issues and if defects are found, you will be asked to correct them. Once the application is approved, it is published in the Kenya Gazette or the Industrial Property Journal for 60 days to allow objections. If no objections are raised, KIPI registers the utility model and issues a Utility Model Certificate.	Ten (10) years from the date of the grant of the utility model and the certificate is not renewable.
Trade Secrets	Confidential business information offering a competitive edge. i.e. KFC chicken recipe	The TRIPS Agreement, to which Kenya is a party.	The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)  does not explicitly provide on how to enforce trade secrets. Nonetheless, the most practical way to protect trade secrets is by entering into non-disclosure agreements which create a contractual obligation to keep the information confidential.	Indefinite unless legally acquired and disclosed.
Geographical Indications	Distinctive signs that identify a product’s origin and qualities tied to its location i.e. Scotch Whisky	The TRIPS Agreement, to which Kenya is a party.	The TRIPs Agreement provides that Intellectual Property refers to all categories of intellectual property which include geographical indications. There is currently no specific provision regarding the registration of both domestic and foreign GIs in Kenya. However, the same can be registered via the trade mark regime as a certification mark for goods or a collective mark for goods and services by foreign and local applicants.	N/A.

What happens when there are overlapping IPR?

A single invention can potentially qualify for protection under multiple intellectual property rights simultaneously.

For example, a new software application could be eligible for copyright protection for its code, patent protection for its unique functionalities, and trademark protection for its logo and can be registered under all three IPR.

How can you commercialize IPR?

1. Licensing

Grant others the right to use your IP in exchange for fees i.e. licensing a patented farming tool to local manufacturers.

2. Franchising

Allow others to operate businesses under your brand and IP i.e. Java House expanding through franchise agreements in Kenya.

3. Merchandising

Use trademarks and logos on branded products i.e. selling T-shirts with football team logos.

4. Strategic Partnerships

Collaborate with other entities to co-develop and market IP-based products i.e. a local musician can team up with an international streaming platform to distribute songs.

5. Assignment

Sell your IP rights outright to another party for a lump sum i.e. selling patent rights for a solar energy solution.

6. Royalties

Earn revenue from others using your IP under agreed terms i.e. from songs played on Kenyan radio stations.

How can you enforce IPR, and what are your legal remedies?

1. Monitor the marketplace to ensure no one is using your IP without permission.

2. Should you discover an infringement, send a Cease-and-Desist letter to the infringing party.

3. If the infringing party does not cease, you can engage your advocates to file a lawsuit at the relevant tribunal or court.

4. In case of a criminal infringement, you can lodge a complaint with the Anti-Counterfeit Authority.

In Conclusion...

Kenya's IPR framework is evolving and increasingly aligning with international standards, offering a solid foundation for innovation and economic development.

Continued efforts to address challenges in enforcement and public education will be crucial in maximizing the benefits of IPR protection.

By strengthening its IPR regime, Kenya can enhance its attractiveness as an investment destination, promote creativity, and support sustainable economic growth.