A trademark is a sign that distinguishes the goods and services of one enterprise, or a group of enterprises, from those of other entities. The sign may consist of words, letters, numbers, drawings, pictures, monograms, signatures, colours, or combinations of these elements. A trademark can therefore be a word, symbol, design, or a combination of these, used to differentiate the goods or services of one person or organization from those of others in the marketplace.
Section 2 of the Trade Marks Act (Cap 506, Laws of Kenya) defines a mark as a distinguishing guise, slogan, device, brand, heading, label, ticket, name, signature, word, letter, numeral, or any combination thereof, whether in two-dimensional or three-dimensional form. The Act further defines a trademark as a mark used, or proposed to be used, in relation to goods or services for the purpose of indicating a connection in trade between the goods or services and a proprietor or registered user of the mark.
Legal Framework for Trademarks in Kenya
Trademark law in Kenya is primarily governed by the Trade Marks Act (Cap 506) and subsidiary legislation. Kenya is also a member of several international treaties and organizations that shape trademark protection, including:
- The World Intellectual Property Organization (WIPO)
- The Paris Convention for the Protection of Industrial Property
- The Madrid Protocol (facilitating international registration of trademarks)
- The Nice Agreement of 15 June 1957
- The Agreement establishing the World Trade Organization (WTO Agreement)
Purpose of Trademarks
Trademarks serve several important functions:
- Business Identity – They distinguish one trader’s goods and services from another’s, enabling consumers to identify the origin of products and preventing fraudulent passing-off.
- Consumer Protection – They reduce confusion and deception in the marketplace by promoting brand clarity.
- Commercial Value – They build brand recognition, goodwill, and licensing opportunities. For instance, the Supreme Court in Jovet v Bavaria affirmed that goodwill is property protected under Article 40 of the Constitution of Kenya. Actions for passing off often arise from violation of goodwill.
- Legal Protection – They confer enforceable rights against infringement and unfair competition. In M-Kopa Kenya Limited v Njenga t/a M-Kopo Kastomer Care & Accessories, the court upheld M-Kopa’s rights after its former agent infringed on its trademarks and passed off its products.
Conclusion
The importance of trademarks cannot be overstated. They secure business identity, safeguard consumers, create commercial value, and provide enforceable legal protection against infringement.
In our next issue, we will explore the registration process, including the requirements and steps for registering a trademark in Kenya.