What you need to know about industrial designs under the law in Kenya

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Ms Aileen Aluso Ingati

                                                   Introduction:

  • An industrial design is concerned only with the outward appearance (eye) appeal of the articles defined by the shape, configuration, pattern or ornament. It must be understood that an industrial design does not protect the method of construction or the function of the article.
  • Visual appeal is one of the considerations that influence the decision of consumers to prefer one product over another, particularly in areas where a range of products performing the same function is available in the market. If the technical performance of the various products offered by different manufacturers is relatively equal, aesthetic appeal, along with cost, will determine the consumer’s choice.
  • An industrial design registered in Kenya does not give protection abroad. It is only effective in Kenya but the Kenyan application can be used to establish a priority date for a separate application made in another country.

                                              Definition of an industrial design:

  • An industrial design is a composition of any lines, colors or any three dimensional form whether or not associated with the lines or colors.
  • The composition or form should give a special appearance to a product of industry or handicraft and can serve as a pattern for a product of industry or handicraft.
Ms Aileen Aluso Ingati

                           Naming of a creator and the right to an industrial design:

  • The creator of an industrial design or his/ her successors in title has the exclusive rights to sell the goods in which the design is incorporated for commercial or industrial purposes.
  • The right to an industrial design belongs to its inventor.
  • If two or more people have made the industrial design jointly, the right to the industrial design shall belong to them jointly.
  • If two or more persons have made the industrial design independently of each other, the person whose application for registration has the earliest filing date shall have the right to the industrial design.
  • If two or more persons have made the industrial design independently and there is a claim of priority, the person whose earliest validly claimed priority shall have the right to the industrial design.
  • The right to an industrial design may be transferred through succession.

                           Industrial designs made in execution of commission or by an employee:

  • Unless there is a contractual provision to the contrary, the right to an industrial design made in execution of a commission or of an employment contract shall belong to the person that has commissioned the work or the employer. This also applies where an employee’s contract does not require him/ her to come up with any industrial designs but when the employee has made the industrial design using data or means available to him/ her during their employment.
  • Where the industrial design is of exceptional importance, the employee has the right to equitable remuneration taking into consideration his/ her salary, the importance of the industrial design and the benefit derived by the employer from the industrial design.
  • Industrial designs made without any relation to an employment or service contract and without the use of the employer’s resources will belong to the employee or person commissioned.
  • The person (s) that made the industrial design is/ are named as such in the registration application and certificate unless otherwise stated.

                                 What industrial designs can be registered?

  • An industrial design can be registered if it is new.
  • An industrial design is deemed to be new if it has not been disclosed to the public, anywhere in the world, by publication in tangible form in Kenya prior to the filing date.
  • An industrial design is deemed to be new if it has not been used anywhere in Kenya prior to the filing date.

This article has been prepared by Ms. Aileen Aluso Ingati, a Senior Partner at Kazi Advocates LLP and a registered Patent Agent at the Kenya Industrial Property Institute.

For more information on industrial designs or any further queries, email us on aluso@kaziadvocates.com/ info@kaziadvocates.com or telephone us on +254 726 447098/ +254 020 2047098

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