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Legal challenges facing franchising in Kenya

Legal challenges facing franchising in Kenya. Introduction. This presentation is a general overview of the Kenyan laws that relate to Franchising and Licensing agreements. Anthony Okulo: Advocate High Court of Kenya. Topics of Discussion. Innovation process Franchising & Licensing

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Legal challenges facing franchising in Kenya

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  1. Legal challenges facing franchising in Kenya Anthony Okulo

  2. Introduction • This presentation is a general overview of the Kenyan laws that relate to Franchising and Licensing agreements. • Anthony Okulo: Advocate High Court of Kenya Anthony Okulo

  3. Topics of Discussion • Innovation process • Franchising & Licensing • Transfer of technology • Trademarks Act (Cap 506) • Copyright Act 2001 • Traditional knowledge • Ownership • Originality • Infringement • Remedies or Relief • Recommendations • Conclusion Anthony Okulo

  4. INNOVATION PROTECTION (REGISTRATION) IP database PROTECTION AGAINST INFRINGEMENT COMMERCIALISATION TRANSFER / LICENSING Innovation process Anthony Okulo

  5. Franchising and licensing • Franchise: the sole right granted by the owner of a trademark to engage in business or to sell goods or services in a certain area. • License: revocable permission to commit an act that would otherwise be unlawful Anthony Okulo

  6. Transfer of technology • Technology: the systematic knowledge for the manufacture of a product, the application of a process or the rendering of a service. • Technology can be transferred by an assignment or license Anthony Okulo

  7. Trademarks Act (Cap 506) • Trademark: a mark or sign 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 registered owner Anthony Okulo

  8. Copyright Act 2001 • Copyright: a property right in an original work of authorship (literary, musical, artistic, photographic or audiovisual) fixed in any tangible medium of expression giving the holder the exclusive right to reproduce, adapt, distribute, perform or display the work Anthony Okulo

  9. Anthony Okulo

  10. http://www.biashara.biz/pd_tusker.cfm# Anthony Okulo

  11. Traditional knowledge • WIPO • Tradition based literary, artistic or scientific works; performances; inventions; scientific discoveries; designs; marks; names; symbols; undisclosed information; and all other tradition based innovations and creations resulting from intellectual activity. • Tradition based: knowledge transmitted from generation to generation Anthony Okulo

  12. Folklore • Copyright Act: folklore is literary, musical or artistic work presumed to have been created within Kenya by an unidentified author which has been passed on form generation to generation and constitutes a basic element of traditional heritage Anthony Okulo

  13. Ownership • Trademarks, patents, utility models must be registered. Registration certificate is poof of ownership • Copyright: the owner is the person who first makes or creates the work • TK: passed on from generation to generation and collectively owned Anthony Okulo

  14. Originality • Trademarks: must relate to a particular class of goods and services e.g.. Elephant head • Copyright: sufficient effort expended on the work to give it an original character. Work must be fixed or reduced to material form • Jewani –v- Going out magazine & another [2002] 1 KLR proof of sufficient work by way of photography, development, design , artwork, colour separation and publication confer on the works an original character • TK: constantly evolving in response to changing environment Anthony Okulo

  15. Infringement • Copyright • Economic rights: exclusive rights which allow the owner of the rights to derive financial reward from the use of his/her works • Moral rights: right to claim authorship of the work and to object to any mutilation of or derogatory action in relation to the work. • Universal Declaration of Human Rights Article 27 : ‘ everyone has the right to protection of the moral and material interests resulting from scientific, literary or artistic production of which he is the author • TK: unauthorised reproduction [ ownership??] Anthony Okulo

  16. Infringement • Designers Guild –v- Russell Williams (H.L.) [2001] ALL ER 701: the owner complains that the defendant has copied all or a substantial part of the copyright work. the reproduction may be exact or it may introduce deliberate variations • Alternative Media Ltd –v- Safaricom Ltd HCC 263 of 2004 infringement of copyright does not mean reproduction in its original form it includes the translation or adaptation of original work. innocent infringement is no defence as copyright is a proprietary right. Anthony Okulo

  17. Remedies or Relief • Damages • Injunctions • Accounts • Delivery • Destruction • Royalties • Inquiry Anthony Okulo

  18. Recommendations • Trade Practices Act • Specialist IP Magistrates and Judges • Know your IP rights • Enforce your IP rights • Education on different forms of IP rights (WIPO Academy) • IP inspectors Anthony Okulo

  19. Conclusion • Kenya is ready for local and international franchising the business sector must take advantage of the opportunity • University of London Press Ltd –v- University Tutorial Press Ltd [1916] 2 CH 609 : ‘… there remains the rough practical test that what is worth copying is worth protecting..’ Anthony Okulo

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