For many creatives, navigating the business and technical sides of one’s art is challenging, for example: how to earn a reputation from it, establishing yourself as a brand, earning people’s trust, and more importantly, how to earn a living from your work and not be exploited.
This means understanding the legal framework around these crucial issues and knowing how to register and protect your craft, using trademarks, copyright and intellectual property rights. Baraza Media Lab recently hosted a learning session with Kangwana, Clyde & Co. Associates, lawyers who specialize in trademark, intellectual property and copyright to break it down to members of the Baraza community. They summarized years of law school into easy and digestible explanations, with well known examples too.
Here’s a summary of the major learning points from the session, you can always reach out to them for a deeper dive into any of the topics, or for a one-on-one consultation.
- What is a copyright?
A copyright refers to an exclusive bundle of rights granted to an author to the exclusion of any other person.
- What qualifies for registration as copyright?
- Literary works
- Audiovisual works and films
- Architectural drawings
- Other forms of literary, musical, artistic, audio-visual, sound recordings and broadcasts.
- What is the process of copyright registration?
You start by filling out a prescribed form that you will get from the Kenya Industrial Property Institute (KIPI), then attach copies of the work you want to copyright, pay the official registration fee (Ksh. 1000) and get a stamped receipt for your payment, then obtain a certificate of registration from the Registrar of Trademarks.
- How long does the registration process take and how long does it last?
It takes five working days since the process is automated and can be done online, and the registration lasts the lifetime of the author plus 50 years.
- What rights does a registered copyright give me?
- Economic rights: These give the copyright owner the right to control adaptations of their work, recording, public performance and communication of their work, plus the right to control its translation into other languages.
- Moral rights: which include being properly credited whenever your work is used, which is called the right of attribution that also gives you power to prevent false attribution. You will have control over how your work is handled and exhibited. Moral rights also grant you privacy, in that you can refuse your work being shown in certain mediums like film and photos.
- And other related rights: such as performers’ rights, where the copyright owner gets to decide how their work will be performed; database rights which protects someone who creates databases of various forms of art like paintings or poetry; and publication rights, where the creator gets a say in how the work will be published and distributed.
- What exactly is a trademark?
A trademark is a mark used to distinguish one product from others. A mark can be anything from a device, slogan, name, signature, numeral, letter, word, or any combination of the above.
An example is the 504 on Peugeot, or 0722 by Safaricom. A trademark gives your business a distinction. Here are a few more examples:
Name- Tom Ford.
Slogan- Gives You Wings.
The moment you register a mark, it gives your product an identity.
- What process should I follow to register my trademark?
First, it is important to know that trademark applications involve a lot of paperwork and a lot of small rules like font type, so it’s best to use a lawyer.
You start by conducting a search on the national database where all trademarks are registered, to ascertain that the mark isn’t registered by someone else. Some marks however enjoy protection simply because they are well known. Take Coca Cola for example. It’s a brand that’s internationally recognised and consumed, from small towns to big cities, so it would be impossible to use their logo, even if they weren’t registered. This is why recognition for your brand is important.
If the mark has not been registered yet, then the next step is for KIPI to inform you on things you can’t have on the mark. A mark will not be accepted if it’s:
- Deceptive or morally scandalous.
- Similar to other marks already registered and can confuse the public.
- Not indicative of quality, quantity, kind, geographical region, mode or production time or a mark that is associated to a particular trade as custom.
- How long does the registration process take?
The timeline for registration can last from 6 months up to two years. This all depends on whether there are any objections or amends to your mark.
- How soon should I register my mark?
The moment you are interested in registration, act on it immediately. A search is just an enquiry and not official registration. So if someone beats you to it, the mark is theirs.
- What are rights attached to registering?
You have the right to:
- Exclusively use the trade mark and exploit it fully
- Prevent others from using it
- License the use of the trade mark
- Earn income from it
- How long does a trademark last?
A trademark lasts for a period of 10 years. After that, you need to renew it.
- If someone takes my mark and makes small changes to it and tries to register it, how do I stop that?
To be safe, it is advisable to register your mark in different versions, that is, different colours, different logo placings, etc. Make it nearly impossible for anyone to use any variation of your mark. It is possible to register your mark in as many variations and classes as possible.
- How do I make sure my trademark is not stolen by someone outside of my country?
Make sure to register your mark in each territory you plan to do business in. So if you plan on running your business in Kenya and Mexico, make sure you register your mark in both places. Your country may not be able to fully protect your work outside of its borders.
- What if a business in another trade category wants to use my mark? How do I stop that?
You need to understand classifications. Let’s take Safaricom, which is in the telecommunications space. It’s really important for them to protect their mark such that no one else in the telecoms space can use it. They can do this by registering their trademark in other classes.
Once the mark is approved, it’s advertised on the Kenya Gazette, and members of the public have the right to object to the proposed mark. This process takes 60 days. If no objection arises, you are given a certificate of registration from the Registrar of Trademarks.
- If you miss the 60-day window to object against someone using your mark, what happens?
It’s advisable to check the KIPI (Kenya Industrial Property Institute) journal every month in order to ensure that someone isn’t trying to run with your trademark. Lawyers can help you out in case you miss the 60-day period and if you had registered said mark, you can still oppose it. The case will be handled by the Industrial Property Tribunal.
- Does a word mark supersede every other mark?
No. All marks are equal. None holds a higher value. You can further protect your mark by registering it under a word and logo.
- What about cases where two separate businesses have the same trademark, for example Jubilee Insurance and Jubilee the political party?
Classes and purpose come into play here. These two businesses aren’t registered in all the classes, so another business in a different class can use your mark. Their business purposes are also different, so it’s not confusing to the public.
- In the famous case of the kyondo, which is a Kenyan creation yet was registered as a trademark in Japan, how do you protect your work from cases like these?
The first answer would be to immediately trademark, copyright or patent your work when you create it. You can also register the entire process of how you do your work so that no one can steal the process and create something similar to yours.
- Is your trademark, copyright or IP considered your property, just like land or a physical asset? Can you use it as collateral for a loan?
Thanks to the constitution put in place in 2010, intellectual property, which is a creation of your mind, counts as property, and you can secure bank financing with any form of it. Gone are the days when you’d only get funding from a bank if you had land, a building or a vehicle you could offer them as collateral. This is according to the 2010 constitution.
We hope this information will be enough to get you started on the journey to protecting your work and getting full benefits from it, because that’s equally as important as creating the art. Take these lessons, do a bit more research and secure your work. And don’t be afraid to reach out to someone more knowledgeable who can guide you, like getting a lawyer to help you through the process.
Exercise your full creative rights!