Trademark is a distinctive sign, word, letter, numbers, monograms, drawings, symbol, pictures, signatures or colours that goods and services of a company, individual, industry or from others legally. Trademarks are generally considered a form of intellectual property.In Kenya, registration of trademarks is under the Trademarks Act, Cap 506 of the Constitutional, Laws of Kenya. The use of these distinctive signs and symbols to differentiate traders’ products became significant with the rise of trade.
Trademark is a vital tool for both producers and consumers because it provides protection to the consumers hence strengthening the brand. Trademark makes it easier for customers to identify your business and the services or goods offered. Whether they are on social media, browsing the internet, or walking around the neighborhood, your customers can immediately identify your company and available products or services when you use a trademark.
Trademarks Compared to Service Marks
Trademarks are words, phrases, symbols, designs, or a combination of them that can be used to identify and distinguish the source of goods. If you are manufacturing goods for sale, it is a good idea to use a trademark that can be put on all your goods to identify you as the source. Some well-known trademarks include “Coca Cola” to identify the source of brown sugary sodas and “Apple” to identify the source of personal computers and associated products. The largest source of intangible value (or intangible asset) that a company has is its trademark. Trademarks do not expire because the owner has exclusive rights of exploitation from the date the trademark is registered. A trademark can be registered for 10 years and protection may be renewed indefinitely. The owner of the trademark must make annual payment fees in order to maintain their rights. If the mark is not used for five consecutive years trademark protection is removed. The trademark holder is allowed to sell, use license and prevent its unauthorized use.
A trademark is the face of a company and has intrinsic economic value. The owner should protect that and ensure that the trademark is not used incorrectly or by anyone who is not permitted to use it.A trademark is not compulsory but it is highly advisable to register one for a company. Use of a sign or mark for a long period of time can establish ownership through Common Law. The use of an unregistered trademark can lead to penalties and legal disputes in court. Examples of trademarks in Kenya are: “NTV” is a registered mark of the Nation Media Group and “KCB” is a registered mark of Kenya Commercial Bank. Some companies may use their trade name or part of it as a trademark. For example Kenya Wine Agencies Limited “KWAL”
Service marks are words, phrases, symbols, designs, or a combination of them that are used to identify and distinguish the source of services. Often the term “trademark” also refers to service marks. Service marks are used to identify services provided by specific companies. The need to enable consumers to differentiate services grew when services started to develop both locally and internationally. Such services include insurance companies, shipping companies, and airlines.Commonly known service marks are “BRITAM” for insurance services and “Kenya Airways” for airline services.
As with trademarks, service marks are protected only for a particular geographic area in which services are provided, and reasonable extensions of that area, unless the mark is registered. If a service mark is registered with the Kenya Industrial Property Institute and Anti-Counterfeit Agency it applies nationwide. There is no practical difference between how trademarks and service marks are protected. You can choose to register one or the based on what you are offering the public: goods or services.
Certification and Collective Trademarks
Certification marks certify that goods or services have a particular nature or origin. They may indicate that an item or service comes from a specific geographic location, is made of a particular material, has a certain quality, or has any other defining characteristic. A certification mark also can certify that a particular manufacturer or service provider adheres to certain standards. An example of a certification mark is the examples are Kenya Bureau of standards and wool mark used on clothing that are 100% pure wool. This is awarded to manufacturers to show that, if a product carrying the seal is found defective within two years from the purchase date, the company will replace or refund it.
If you are the head of an organization, such as a labor union or licensing entity, you might consider a collective mark. These types of marks are any words, phrases, symbols, designs, or a combination of them that show that the mark’s user is a member of a specific organization. While the organization remains the mark’s owner, the members are those who use the mark to indicate their affiliation.
In order to belong to a group and use the collective membership mark, a member usually has to pay membership fees and follow rules that the organization puts forward. Used properly, collective membership marks can help the public quickly discover whether a business has any affiliation with a group. For example, Kawangware Amani Women’s group, the famous Jua Kali artisans.