When the Kenya Industrial Property Institute (KIPI), the State-run parastatal mandated to protect 4 elements of intellectual property rights namely patents, utility models, industrial designs and technovations, announced that Kenya had not lost the Kiondo and the Kikoi to foreigners, it came as the best news yet.
According to investigations by Sylvance Sange, the principal examiner at KIPI’s Technical Services Department, no Kenyan kiondo or kikoi product had been refused entry into either Japan or the UK following claims of intellectual property rights.
A search conducted at the Japanese patent office database only found industrial woven baskets, some made of fabric or paper materials. The fact that the investigation revealed several patented baskets shows that those protections are restricted to process as opposed to product patents. This implies that the kiondo basket suffered no exclusion in the Japanese market.
A further search in the Japanese trademark database to establish whether the kiondo was registered as a brand name for fabrics and baskets in Japan returned negative results. While ruling out any patenting of kiondo, Sylvance points out that Kikoy UK Company’s application on August 26, 2006, to register the word ‘kikoy’ as a trademark for textile goods was rejected when the applicant failed to meet UK Patent Office requirements after some parties objected to the application.
Sange said the two items are already enjoying express intellectual property protection of the law. In the intellectual property jargon, the kiondo enjoys protection as information in the public domain, which cannot be subject to exclusive rights in favour of an individual against others while the kikoy is protected as a generic name of a product that should be available for use by all.
But the downside according to KIPI is that the two products cannot be patented either in Kenya or any other country, including Japan and the UK because they have exceeded the stipulated twenty-year non-renewable patent period.
The kiondo, for instance, has exceeded that period after which a product is released to the public domain. Given that the kiondo was created in a local setting to attend to a local need, the kiondo seems to fit well as traditional knowledge – passed on from one generation to another.
The problems in Kenya with regard to the protection of traditional knowledge are that so far there is no legislative framework in place for it. While the Kenyan Industrial Property Act 2001 provides for avenues through which the kiondo can be patented, such protection can only apply locally. The case is the same in Japan. In other words, if one contests the patent grant successfully the patent is invalidated, but would lack the force of exclusion in another market like Japan.
Perhaps more significantly, a granted patent lasts for a maximum of 20 years from the filing date and the protection period is not renewable, which means a patent becomes public upon expiry of this period. Given that the notion of kiondo being patented in Japan has lasted for quite some time, the purported denial of its rights to ownership has lapsed.
“The product Kiondo was never patentable in Japan. It failed the novelty test in Japan. It was not patentable in Kenya either, due to its failure in both novelty and industrial application tests”, Sylvance says in his report, ‘Kiondo Idea Theft: An Intellectual Property Myth!’ On the other hand, the quality and consistency of kikoi products can get protected in Kenya through the registration of distinctive trademarks at KIPI.
KIPI cautions that the word kikoi alone cannot be registered for textile goods, as it is generic to those products when its Kiswahili meaning is considered. This means the term is allowed to silently exist as part of the label, and anybody else is allowed to use it for the same goods when coined differently. Generic words are generally made available for use by anybody free of charge.
There is no legal obstacle whatsoever before the UK Patent Office in registering the word kikoy as a trademark for textiles in the UK. That means, if kikoi products were manufactured in the UK and sold within its territory as opposed to being imported from elsewhere, the applicant had every right to register the word kikoy as a trademark for textiles and legally use it there.
Any protest from another country against that application could not be much of an issue, particularly if it was meant to legally compel the UK Patent Office to refuse registration against the interest of the UK applicant. In the absence of local (UK) manufacturing, the only difficulty facing that registration was on the part of the holder concerning enforcement of his entitled exclusive rights in the UK yet he had to source it from a number of African countries that manufacture kikoi products.