No organisation can sell or market any goods or services under the name “Kabarak” without the express permission of retired President Daniel arap Moi, after he was granted exclusive rights by a government agency.
The Kenya Industrial Property Institute (Kipi) has issued a trademark to the former President after an application by his lawyer, Mr Tom Ojienda.
A trademark is a distinctive sign used by a business to identify its goods or services and to distinguish them from those produced or provided by others.
Registration of a trademark protects the trademark owner against misuse, imitation or dilution through use in unrelated goods or services.
Kabarak, which in Kalenjin means high or elevated, is in Rongai constituency in Nakuru. The area MP is Mr Raymond Moi, the former President’s son. The former President owns Kabarak High School, university and farms in the region.
According to Kipi Journal, Mr Moi applied for the trademark for 45 classes in 2016 and was granted the licences after no one raised an objection. But can anyone trademark the name of a town? Kipi Managing Director Sylvance Sange said it is possible.
“Yes. One can register a geographical name so long as it has acquired distinctiveness with respect to the goods or services it is used in relation to and the goods/services are actually produced or offered in that geographic location,” said Mr Sange in an interview. The trademarking in all 45 classes means no class of goods and services can be offered under that name.
“Third parties are prevented from using or marketing similar goods/services having similar names or marks without the express permission of the trademark owner. So, the fact that it was registered in all classes means that no one is allowed to use the term “Kabarak” in any of the 45 classes of goods and services without the trademark owner’s consent,” said Mr Sange in an interview.
However, the law requires that actual use is effected in those classes within the first five years after registration. If the trademark is not used in any of the classes in the first five years, any interested party may file for cancellation of the registration on grounds of non-use of the trademark.
But the MD said Kipi can reject registration of a geographical name if it is an original geographical name. In such a case, the applicant must sign a disclaimer.
“This means that upon registration of the mark, the applicant shall not prevent others from using the mark apart from the distinctive features, for example, the use of the word Nakuru,” added Mr Sange.
A trademark can be in form of word, logo, slogan or a combination thereof in relation to trading of goods and services. The total cost of registering a trademark is Sh12,000 and, with the name Kabarak registered in 45 categories, the former President forked out Sh540,000 to register in all categories.
However, any application filed by a non-resident will draw different fees in US dollars.
It is not clear how businesses already using the name Kabarak will be affected. To date, Kenya has registered 114,445 trademarks. The oldest trademark still maintained in the register is a crocodile logo, Ref. TM No. 91 filed on 8 March, 1913 by Ralph Martindale & Co. Limited of England for cutlery and edge tools products.
Opinion leaders, human rights activists and non-governmental organisations in Nakuru town expressed mixed reactions to the development. They said the move by Kenya Intellectual Property Institute to grant Mr Moi the trademark was “absurd and an insult to the Kalenjin community as a whole”.
“This is a common Kalenjin word and should not be owned by an individual,” said Mr Vincent Tanui, a human rights crusader in Nakuru town. However, Mr Joshua Toroitich said there was nothing wrong with the former President using the name as his trademark.
“The former President was born in Sacho in a village called Kabarak. Patenting the name will distinguish him from other Kenyans,” said the Nakuru County Kanu chairman.
Additional reporting by Francis Mureithi