The rationale behind Intellectual Property (IP) law is to protect creators of inventions, literary and artistic works, designs, and symbols. In Kenya, the legal regime includes the Constitution, statutes, and international treaties. This paper presents an overview of Kenya's trademark, patent, and copyright law.

Trademark Law

The regime relating to trademark protection in Kenya is governed by the Trade Marks Act, Cap 506, and the Trade Marks Rules of 2002. A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises.

The most important aspects of trademark law include:

• Registration: In principle, trademark protection is acquired by registration. Trademarks registered at KIPI include words, names, letters, numerals, logos, shapes, colors, and combinations.
• DURATION: The trademark registration is valid for 10 years from the filing date and may be renewed indefinitely for further 10-year periods.
• INFRINGEMENT: The proprietor of a registered trademark has exclusive rights to use the same about those goods or services for which it is registered. An infringement of a trademark shall occur if an unauthorized person uses an identical or similar mark for identical or similar goods or services.

In Fibrelink Limited v Star Television Production Limited, the High Court held that Star Television Production's use of the "STAR" trademark in relation to internet services was an infringement of Fibrelink's registered trademark for the same services.

Patent Law

The Industrial Property Act of 2001 and the Industrial Property Regulations of 2002 provide Kenya's legal regime for patent protection. A patent is an exclusive right granted for an invention that offers a new technical solution to a problem.

Key aspects of patent law include:

• Computability: For an invention to be patentable, it must be new, involve an inventive step, and be industrially applicable. That means discoveries, scientific theories, business methods, and computer programs per se are not patentable.
• Registration: Patents are granted by KIPI following the conducted examination of the application for a patent. The application is supposed to disclose the invention in such a clear and complete manner that a person with ordinary skill in that particular art can carry it out.
• Length: The patent is valid for 20 years from filing, subject to an annual maintenance fee payment.
• Infringement: The patentee has the exclusive right to make, use, sell, and import the patented invention. Any exploitation of the patented invention, unauthorized by the holder, constitutes an infringement.

In 2012, the case in point was Sanitam Services EA Limited versus Rentokil K Limited, in which the Industrial Property Tribunal held that Rentokil infringed the patent for a foot-operated litter bin owned by Sanitam by importing and selling similar litter bins.

The Law of Copyright

The Copyright Act, 2001 and Copyright Regulations, 2004 govern copyright protection in Kenya. Copyright generally protects original literary, musical, artistic, and audiovisual works, sound recordings, and broadcasts.

The basic elements of the law on the subject of copyright are:

• Subsistence: Copyright protection is automatic upon the creation of a work. No registration is required; though optional registration is available through the Kenya Copyright Board.
• Period: Such copyright is effective during an author's lifetime and 50 years after his death. For anonymous, pseudonymous, and audiovisual works, it is effective 50 years from the date of publication.
• Rights: This provides the owners with exclusive economic rights, such as reproducing, distributing, communicating to the public, and adapting a work. They also have moral rights to be identified as authors and object to work distortion or mutilation.
• Infringement: Infringement occurs when one exercises any of the exclusive rights without authorization by the copyright owner, subject to exceptions and limitations like fair dealing.

In Irene Mutisya & another v Music Copyright Society of Kenya Limited, 2019, the Court of Appeal found that the Music Copyright Society of Kenya had transgressed into the plaintiffs' copyright by collecting royalties in the plaintiffs' songs without authority.

Conclusion

The IP legal framework in Kenya protects trademarks, patents, and copyrights by international standards. The courts have also enforced IP rights and clarified the extent of protection. Nevertheless, some challenges remain in raising public awareness about IP rights, improving institutional capacity in examining and registering IP, and building effective enforcement mechanisms.

Strengthening the IP legal framework and its administration can be an important means of

encouraging innovation, creativity, and investment in Kenya. It ensures real benefits to the creator

or inventor from their intellectual efforts, aiding socio-economic development.