Every business in Kenya needs a trademark to distinguish their products or their enterprises. A Trademark is a sign which serves to distinguish the goods of an industrial or a commercial enterprise or a group of such enterprises.
The sign may consist of
words like COLGATE, PANADOL
colours or combination of colours.
A Trademark can be a word, a symbol , a design, or a combination of these, used to distinguish the goods or services of one person or organization from those of others in the market place.
Why is it important to have a trademark?
A trademark is direct evidence pf exclusive ownership of a product or enterprise.
It also helps keep off potential infringers who would be attempted to ride on the goodwill of your mark.
It enables you to more easily protect your rights more easily in case someone challenged them since the burden is on the challenger to prove any rights in a dispute.
Point to note:
A trademark is not mandatory. using a mark for a certain length of time can establish your ownership through
Common Law, -but it is highly advisable to register a trade mark.
The use of an unregistered trade mark can lead to a lengthy, expensive legal dispute over who has
the right to use it.
Remember, a registered trade mark is also a valuable asset for business expansion especially so through licensing franchises.
Who can register a trademark?
An individual, a company, a partnership, a society, a co-operative or any lawful association can apply for a trade mark provided they meet the requirements of the Trade Marks Act.
There are different types of Trademarks, and you can decide which one suits your business more:
These are those marks that relate to identify goods
A Service Mark is a sign which serves to distinguish services of an industrial or a commercial enterprise or a group of such enterprises. The sign may consist of one or more distinctive works, letters, numbers, drawings or pictures, monograms, signatures, colours or combination of colours . Example:
A certification mark helps to identify goods or services which meet a defined standard. Certification marks are owned by one person but licensed to others to identify good or services which meet the defined standard.
A distinguishing guise identifies the unique shape of a product or its package. If for example you manufactured chocolate moulded to look like a rabbit, you might want to register the rabbit shape as a trade mark as a distinguishing guise.
What do you need to register a Trademark in Kenya?
In order for a trade mark (other than a certification mark) to be registrable in Kenya, under the Trade Marks Act (Cap 506) it must contain or consist of at least one of the following essential particulars:-
The name of a company , individual or firm , represented in a special or particular manner
The signature of the applicant for registration or some predecessor in his business
An invented word or invented words;
A word or words having no direct reference to the character or quality of the goods, and not being according to its ordinary signification a geographical name or a surname.
Any other distinctive mark.
A disclaimer is a statement indicating that a certain word or portion of a trade mark is not protected. This means that it is possible to have in your trade mark parts or words that are generic or commonly used in the trade for those products with the understanding that you have no monopoly over it and thus no right to bar others from using those words.
EG: If you package milk and your brand is Uzito milk, the disclaimer would cover the word ‘milk’ Having a disclaimer does not however mean that you can never use the disclaimed portion as part of your mark.