By PETER MWAURA
Daily Nation Media
April 19, 2008
Intellectual property rights are regarded by many people as food for the rich and poison for the poor. But this is a debatable issue; maybe the topic for another article. What is straightforward in today’s knowledge-driven economies, however, is the role of these rights in development.
IPRs protect inventions, scientific discoveries, copyrights, patents, trade marks, industrial designs and, in some cases, traditional knowledge and folklore. They are critical tools in commerce, wealth and knowledge generation.
There is evidence that countries which embrace the IPRs grow faster. It is no accident, for example, that the largest number of international patent applications received by the World Intellectual Property Organisation (WIPO) from developing countries in 2007 were from South Korea (7,061) and China (5,456).
The fast-growing countries were followed by India (686), South Africa (390), Brazil (384), Mexico (173), Malaysia (103), Egypt (41), Saudi Arabia (35) and Colombia (31).
Kenya filed only three applications, most probably not because of a dearth of patentable rights, but lack of awareness of what is patentable. Wise nations, businesses and individuals capitalise on IPRs to create wealth, foster development and, of course, ward off imitators and copycats.
As Kenya has found to its sorrow, IPRs do not aid countries who sleep on their rights. In recent months, Kenya lost its rights to the kiondo design, and nearly did so with the kikoi because it was not vigilant. The country consequently lost its kiondo export business because it forgot to protect it as a creation of Kikuyu and Kamba women weavers who over the years have perfected the art.
Kenya could have protected the kiondo by registering it internationally, possibly as a patent or trade mark, or as a “geographical indication” just like the French, for example, protect their wines. Kenya need not have lost the trade to Japan and other Far Eastern countries which turned the hand-woven basket into a mass-made product using modern technology.
The aftermath was that Kikuyu and Kamba women who supplemented their incomes by weaving the kiondo for the export, were edged out of the market. A Japanese company seems to have patented its own kiondo, but copied from Kenya. Legally, it made no difference that the kiondo was a Kenyan invention or folklore artifact. The IPRs law aids the vigilant, not those who slumber on their rights. In the international IPRs regime, the first in order of time prevails.
Kenya did not seem to learn from the kiondo debacle, however.
Shortly afterwards, a British firm, Kikoy Company, applied to trademark the term “kikoy” — an Anglicised form of kikoi, the Kiswahili word for the colourful wrap-around worn by men and women, especially at the Coast.
If Kikoy had succeeded it would have meant that Kenyans could not export any kikoi products to Britain and possibly to the other 26 European Union members.
Fortunately, the attempt by Kikoy to register kikoi as its trade mark evaporated following opposition by Traidcraft Exchange, an organisation that champions the cause of fair trade in the UK and internationally. Traidcraft took up the case reportedly at the request of Nairobi-based Cooperation for Fair Trade in Africa.
A leading London law firm, Watson Burton LLP, agreed to provide free legal services. Kikoy then decided not to proceed with its application in the face of the overwhelming opposition.
The British Intellectual Property Office had given Kikoy until March 7, this year, to register kikoi as its trade mark, a deadline that it ignored in the changed circumstances. We should also remember that Kikoy has a Kenyan sister company.
Kikoi can still be used by anybody to describe their fabrics.
According to the IPRs system, Kenya does not own kikoi because it has not taken any steps to protect it. Some IPRs experts can even argue that kikoi is a generic name and therefore cannot be trade-marked.
However, kikoi is a hand-knitted fabric inspired by Kenya folklore, history and vibrant colours, just like the kiondo. The IPRs regime allows the protection of certain traditional knowledge or folklore artifacts through such mechanisms as trade, certification and collective marks as well as geographical indications.
According to Prof James Otieno Odek, the managing director of the Kenya Industrial Property Institute (KIPI), the threat to take over kikoi served as a wake-up call to Kenya.
“So many people have since come to us seeking to protect their products,’’ he told Inter-Press Service.
But the wake-up call has not reached enough people, or the authorities, so as to move effectively to protect not just local inventions and scientific discoveries, but also indigenous knowledge in agricultural products, plant varieties, arts, ritual dress and other cultural artifacts such as the Mt Kenya coffee, the Kikuyu grass, the Meru potato, the Molo lamb, the omena (dagaa), the Machakos honey, the Kisii soapstone, the nyatiti (Luo stringed music instrument) as well as the Maasai akala (footwear made from old tyres) and beads.
Kenya, which in the past five years has filed with WIPO only 24 applications for patents, stands to lose if it continues to slumber. KIPI should educate the local communities to enable them to negotiate and use the international IPRs systems.
Sure enough,developing nations need to be educated on issues pertaining to IPR's.I wonderwhy somepeople take advantage of 3rd world nations? I thought they were light years away from the so called developed nations? Its morally wrong,think of those women who made kiondo's as source of a livelihood,now the kiondo belong to a firm somewhere in Japan and its an indegeneous item among the kamaba and kikiyu people.I wonder what would happenen if a firm in africa sought to patent the kimono dress??
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