KENYA Law and Practice Contributed by: John M. Ohaga, SC and Joy Wanyika, TripleOKLaw Advocates
• deceptive or misleading marks; • scandalous or immoral matter; • marks identical or confusingly similar to earlier registered marks; or • emblems protected under law (eg, state insignia). Advantages of registration include: • exclusive right to use the mark in relation to the registered goods/services; • statutory protection against infringement; • easier enforcement in court (no need to prove goodwill, unlike passing off); and • stronger position for licensing, sponsorship and merchandising deals. A mark can be registered without use. Kenya operates largely on a first-to-file system, meaning a mark can be registered without prior use. However, if a regis - tered mark is not used for five consecutive years, it becomes vulnerable to cancellation for non-use. 5.2 Copyright/Database Rights Kenya recognises copyright, and it is governed pri - marily by statute under the Copyright Act, 2001 (as amended). Copyright in Kenya is therefore statutory rather than derived from common law. Basic Requirements for Copyright Protection The work must fall within a protected category (eg, lit - erary, musical, artistic, audiovisual works, broadcasts, sound recordings). The work must be original, meaning it originates from the author and involves some degree of skill, labour and judgement. The work must be fixed in material form (ie, recorded
• stronger commercial positioning for licensing and assignment. Major Defences to Copyright Infringement These include: • fair dealing, including use for research, private study, criticism, review or reporting of current events; • incidental inclusion of a copyrighted work; Kenya does not have a separate database right, but databases may qualify for copyright protection if they meet originality requirements. 5.3 Recognising Personality/Image Rights Image rights (personal rights of publicity and NIL rights) are recognised in Kenya, although there is no single, consolidated statute dedicated to such rights. Instead, recognition is achieved through a combina - tion of statute, the Constitution, and common law precedent. • educational exceptions; and • authorised use under licence. Database Right 5.4 Protecting Personality/Image Rights No response was provided in this jurisdiction. 5.5 Licensing Professional athletes exploit their IP primarily through licensing their image, name and likeness under endorsement agreements. They may grant brands the right to use their image in advertising, social media campaigns, promotional appearances and branded merchandise. Some athletes also register their names or logos as trade marks to strengthen licensing lever - age and prevent unauthorised use. By contrast, non-professional or university/college sports bodies and athletes in Kenya operate in a more limited commercial environment. University sports associations may license event branding for sponsor - ship or merchandise, but commercial exploitation is generally modest and often reinvested into develop - ment programmes. Student-athletes typically do not operate structured NIL licensing models comparable to those in jurisdictions such as the United States; any
or reduced into tangible form). Registration and its Benefits
Although copyright protection is automatic, voluntary registration is available through the Kenya Copyright Board (KECOBO). Registration is not a condition for protection but provides:
• evidentiary proof of ownership; • easier enforcement in court; and
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