REGISTRATION AND RECOGNITION OF TRADEMARKS IN KENYA
What is a Trademark?
The Trademarks Act, CAP 506 of the Laws of Kenya defines a trademark as a mark used or proposed to be used in relation to goods and services for the purpose of indicating a connection in the course of trade between the goods or services and the person having the right either as proprietor or as registered user to use the mark. It is basically a mark, phrase or logo used to identify and distinguish the source of goods or services.
Law applicable for Trademarks in Kenya
The law applicable in Kenya is the Trademarks Act, CAP 506 of the Laws of Kenya.
Effect of Trademark registration
Registered Trademark owners enjoy exclusive rights over the Trademark thus giving them the right to take legal action against a party who attempts to violate their exclusive right by making unauthorized use of the trademark. Trademarks also allow for a distinguished brand identity thus creating a unique identity for the brand among the competitors. Trade Marks further form the basis to protect goods and services from low quality counterfeits.
Trademark Registration Procedure in Kenya
The process entails the following two stages:-
- Trademark Search
One can only proceed with registration of a trademark upon receiving confirmation from the Kenya Industrial Property Institute (KIPI) that the Trademark has no registered proprietor.
- Trademark Forms
One is expected to proceed with preparation of the requisite statutory forms, as established on the KIPI website, upon confirming through the search results that the mark is not registered. Some of the key forms for making the application include but not limited to, TM1 on Authorization of an agent, TM2 on Application for Registration of a Mark, TM27 on Application for search under Rule 114/Application for preliminary advice as to distinctiveness among others.
It is highly advisable to rely on the services of an agent, particularly an Advocate, in preparing and lodging the application for registration of a Trademark.
Trademark Infringement
A trademark is infringed by any person who, not being the proprietor of the trade mark or a registered user uses a mark identical with or so nearly resembling it as to be likely to deceive or cause confusion in the course of trade or provision of any services in respect of which the Mark is registered.
Remedies for infringement
A trademark owner is at liberty to file for an injunction under a certificate of urgency to curb the damage to their brand. Alternatively, you would seek to obtain damages for the harm already caused to your brand.
NB *This write up is meant for general information only and should not be relied upon without seeking specific legal advice