Introduction to intellectual property rights by Sylvance Anderson Sange, mip




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INTRODUCTION TO INTELLECTUAL PROPERTY RIGHTS

By

Sylvance Anderson Sange, MIP.


Kenya Industrial Property Institute (KIPI)

Intellectual Property


Intellectual Property is a property that arises from the human intellect. It is a product of human creation.

It is the creation of the human intellectual process and is therefore the product of the human intellect or mind.


Intellectual property protects applications of ideas and information that are of commercial value. They are rights to stop others from doing certain things, to stop pirates, counterfeits, imitations, etc.
The rationale for protection of intellectual property is to stimulate and promote further creativity.


Objects of Intellectual Property


Intellectual Property comprises the following types of protection:


  1. Industrial Property Rights (Patents, Trademarks, Industrial designs, Utility Models, Topography of integrated circuits and Geographical Indications)

  2. Copyright (Literary and artistic works)

  3. Protection of New Varieties of Plants



Administration


In Kenya three government ministries administer intellectual property rights. Kenya Industrial Property Institute (KIPI), a body corporate in the Ministry of Trade and Industry administers the Industrial Property Act 2001 of the laws of Kenya covering Patents, Trade marks, Service marks, Industrial designs and Utility models. Copyright is administered by the Copyright Board of Kenya an office in the Attorney General Chambers under the Copyright Act 2001 of Kenya. The Plant varieties Act of Kenya is administered by the Kenya Plant Health Inspectorate Services KEPHIS.

Importance


Intellectual property has long been recognized and used by industrialized countries, and some developing countries, as an important tool of technological and economic development. Many developing countries are becoming increasingly aware that it is in their best interests to establish national industrial property systems, where they do not exist, and to strengthen and upgrade existing systems which, inherited from their historical past, are no longer adequately responding to new needs and priorities.
Countries have laws to protect intellectual property for two main reasons. One is to give statutory expression to the moral and economic rights of creator for their creations and the other is to promote, as a deliberate act of government policy, creativity and to encourage fair-trading. This contributes to economic and social development.

Protection


Intellectual property is protected by national laws, which are unique in each country. Some countries including Kenya have become signatories to multinational treaties and agreements, which provide some form of harmonization in the protection of intellectual property. Kenya is a member of the following Organisations, Protocols, treaties and agreements:

    1. World Intellectual Property Organization WIPO

    2. African Regional Intellectual Property Organisation –ARIPO

    3. Trade Mark Law Treaty- now Singapore Treaty on the Law of Trademarks since 28th March 2006.

    4. Paris convention for protection of Industrial Property.

    5. Madrid Union (Madrid Agreement & Protocol) on International Registration of Marks.

    6. We are about to join Nice Agreement on classification of Trade and Service Marks.

    7. We use Vienna Classification although not members of Vienna agreement (There is provision in Trademarks Act for both Nice and Vienna classifications)

    8. Patent cooperation treaty PCT

    9. Berne convention on Copyright

    10. Nairobi Treaty on the Protection of the Olympic Symbol

    11. UPOV for New Plant varieties

    12. Trade Related Aspects of Intellectual Property Rights (TRIPS).

Kenya’s existing intellectual property legislations have been drafted in line with those provisions.

Rights Conferred


The owner of the intellectual property right has the right to preclude any person from exploiting the protected property by any of the following acts­

  • making, importing, offering for sale, selling and using the property; or




  • stocking such product for the purposes of offering it for sale, selling or using the property.

In return for the grant of a patent for example, the inventor places the technological information surrounding the invention in the public domain. This is achieved by publishing a patent document. Any invention, which is not protected in a given country, is considered as being in the public domain in that country. Such invention could be used in that country for its own technology development without the risk of infringement.


The duration of a patent is usually limited to twenty years.

Once this period has expired, all third parties may use the information and thus exploit the invention.



Protection Procedures




Inventions


A patent is granted by a national patent office or by a regional office that does the work for a number of countries, such as the European Patent Office (EPO). At the Institute applications to grant patents are received from four routes, namely:

• local


• ARIPO

• PCT (World intellectual Property Organization-WIPO)

• foreign - direct

.

A patent describes an invention for which the inventor claims the exclusive right.

Invention is a new solution to “technical” problem. (product, process and new use)

Application Procedure for a patent

  • Application (Application Form, Application fees, Patent document, Power of attorney if represented by agent)

  • Patent document (Title, field of technology, background art, brief description, detailed description together with drawings, claims, and an abstract)

  • Search/Substantive examination

  • Publication

  • Grant

  • Priority – 12 months




Utility Model

A utility model is an invention that can be utilized in industry, agriculture, education services or environmental conservation and which relates to shape, structure or assemblages of articles.

  • It must be new

  • Be Industrially applicable




Industrial Design

Industrial Design is the ornamental or aesthetic aspect of a useful article of industry. The aspect that gives special appearance to a product of industry.




Application Procedure for an Industrial Design

  • Application form

  • Application fees

  • Representation of the design (photo, drawing etc)

  • Comparison with existing designs

  • Publication (opposition period 60 days)

  • Registration

  • Priority 6 months




Trade marks


A trade mark is a registered design or name used to identify a manufacturer’s goods.

Trade marks have become more and more important in recent years. Kenya Industrial Property Institute, the official body for registration of trade and service marks in Kenya, is mandated by the Trademarks Act Cap. 506, (As last amended by the Trade Marks (Amendment) Act, 2002), of the Laws of Kenya to give protection to trade marks and service marks.


A trade mark can take many forms. The law states that a trade mark may be any symbol that is capable of identifying a company’s goods or services. It can be a word, a picture or a combination of both. For example “PHILIPS” is protected as a word trade mark. An example of a picture protected as a trade mark is BP Shell’s red and yellow seashell. The name “Florida Casino” together with the stylised (letters in italics) is a combined trade mark comprising a word and a picture.
Colours (think of the yellow Kodak trade mark), combinations of numbers and letters (such as Q8, 4711, AKZO) and drawings or shapes (such as the Adidas stripe or the Coca-Cola bottle) are also considered trade marks.
It is impossible to imagine life today without trade marks. Not only are trade marks necessary to differentiate products or services from each other, but often they have an important expressive or even emotional value as well. The use of trade marks is particularly important in advertisement as a strategy for marketing.
Trade marks help consumers to distinguish the products of one proprietor from those of others in the market place. More usually they associate the trade mark with the reputation (quality) of goods emanating from the proprietor.
Creating a product usually involves major investments, hence the need for the product to be protected. The Trade Marks Act helps the producer protect the trade mark. Registering a trade mark is an important first step for everyone towards safeguarding a Trade mark and combating imitations. Application for registration of a trade mark can be done directly at the Institute or at the place of a trade mark specialist authorised as a representative.

Application procedure for registering a Trade mark


  • First of all, the applicant must request the relevant application forms. The forms are obtained free of charge from our Institute and should be completed in English language.




  • Completed forms can be submitted in person or by mail. The necessary information and fees payable are supplied along with the forms.




  • The Institute checks the completeness and accuracy of the information entered and documents submitted.




  • In a few weeks the applicant receives the results of the search or examination.




  • If the trade mark is available for registration upon examination, it is approved for advertisement in the Industrial property Journal to allow for any opposition, within a period of sixty days from the date of the Journal.




  • If there is nobody challenging the intention to register the advertised trade mark, the trade mark is registered and the applicant is issued with a Certificate of Registration.

An entry in the Institute’s Trade marks Register is valid for ten years from the date of the application. Three months before the validity lapses, the trade mark holder is notified in writing to this effect so that an application for renewal can be made in good time for another set of ten-year period. Trade mark protection is indefinite as long as it is renewed.


The Office can refuse to register certain trade marks, for example in cases where these contain purely descriptive elements (e.g. “tasty Cheese” for daily products or “life insurance” for life insurance). Or even on moral grounds.

Protection Abroad

Currently there is an international agreement formed by two treaties, the Madrid Agreement and the Madrid Protocol, both being referred to as the Madrid System, with the present membership of about 78 countries, Kenya inclusive. This makes it possible for one to apply for protection in some or all of those countries by a single application. Such application is submitted through Kenya Industrial Property Institute as a receiving office, for transmission to the International Bureau of the World Intellectual Property Organization in Geneva, Switzerland.
Copyrights

Registration of copyright is based on non-formality provision under the Bern Convention of 1883 for protection of literary and artistic works. Copyright protection is borne by simply expressing the original idea in a fixed form. However, many countries provide for a national system of optional registration and deposit of works; these systems facilitate, for example, questions involving disputes over ownership or creation, financing transactions, sales, assignments and transfers of rights.


Kenyan copyright office is also considering the possibility of putting in place some form of a procedure before it that would cater for the interest of those creators who demand some symbolic document to signify a protection.

End of Document





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