Trademark, trade wars to increase as companies protect the image

A small start-up has a name, doing business successfully over the past few years, and is challenged by a large company which claims the same name.

The dispute is before the courts, and small business is the loser, left looking for a new name, as it aims to maintain goodwill among its customers.

Analysts say that increased dynamism in the industrial sector in Kenya leads to more disputes related to the brand identity.

Over the past five years, the number of resolutions of disputes concerning the names of companies or brands reached Kenya is entering an economic environment increasingly globalized.

Already, around five cases have been filed this year compared to five years ago, when a similar number is expected to be filed each year.

This is due to an increase in the value assigned to the names that market forces to go for companies with strong brand identity.

"There was a marked increase in such cases in recent years, we can attribute to a more global investors," said John Syekei Nyandieka, a lawyer who specializes in intellectual property cases to Muriu, Mungai and Company Advocates.

Hot issue

Mr. Nyandieka said that the trend is driven by increased focus by companies on names, and said that the region would become a hot legal issue in the coming years as companies moved to adopt their brand image and trademarks of a more aggressive face of increased competition.

Last week, an aviation company operating under the name Delta Connection has been banned by Delta Airlines Inc., a U.S. airliner, which operates internationally, the use of his name.

Delta Airlines had argued that Delta's name was synonymous with its brand, and has secured the rights to use the name exclusively in Kenya by the High Court.

The dissemination of the decision, Justice Joyce Khaminwa said Delta Airlines has created a vast and valuable and good reputation and operated locally and in several parts of the world for 24 years.

She said the company had the right to protect its name.

"The exclusive right to use the trademark" Delta "is granted by law and is the protection of this right," she says

Last year, Delta Airlines has recorded $ 123.1 billion revenue passenger miles. One passenger mile is an industry that represents a mile flown by a paying passenger.

In comparison, Delta Connection, has carried more than 20,000 customers in its five years of operation, carrying passengers between Nairobi and South Sudan.

Delta Connection hope to challenge the decision of the Court of Appeal on the grounds that changing its name would lead the company to lose the goodwill of its customer base.

Delta Airlines hopes to launch services on the market in two months.

A little over a month, a spat erupted between MNEs mobile, Zain, and a small local manufacturer of detergents.

The dispute concerned the Zap brand, the name under which Zain mobile product launched its money transfer in February this year.

The establishment under the leadership of detergent manufacturer, Ngoko companies to defend the name he uses for its range of detergents through a spirit of struggle that is playing to the registration of trade marks office.

Ngoko bar Zain hopes to use the name, "Zap", saying it markets a range of products under the same name and needs to defend the name on the basis that it causes confusion for consumers.

Zain argued that Ngoko Zap registered under a different classification from that used by the mobile, and says there is no way consumers could confuse the two names.

"We do not mark the" ZAP "Ngoko is registered by companies, manufacturers of soap and detergents ZAP. Both of us are in different classifications according to the Law on Trademarks," said Rene Meza, CEO of Zain Kenya.

Zain Kenya that provision in the law have shown that the registration of a name under two different classifications, there was little risk of confusion or conflict that the two entities, businesses and Ngoko Zain treated quite differently and distinct from the goods and services.

Gitau Mwari, the Ngoko lawyer said his client was still studying the issue and was upbeat about the trade-mark application submitted by Zain has not yet been approved by the Registrar.

Historically, however, companies in Kenya are more accustomed to dealing with trademark infringements.

Famous cases

"In this scenario, a company launches a brand that is an established brand name, hoping to get on the brand value of a more established in a profit or goodwill," said Mr. Mwari.

Famous cases include some of the largest companies in the country.

In 2002, a new product on the market called multinational Beiersdorf Nivelin invited to go to court to protect its brand Nivea.

The case before the courts, where the Court of Appeal ruled that manufacturers of Nivelin stop selling their product, as has been reached on copyright Nivea.

Nivelin was a petroleum jelly that was sold using colors and effects of Nivea brand, which launched its petroleum jelly.
Tobacco manufacturer British American Tobacco (BAT) is facing a similar scenario in 1995.

A local tobacco, tobacco, has launched a brand of cigarettes that has a similarity to a mark that BAT was the manufacture of more than 66 years old.

Domain Name

Cut tobacco brand, Horseman, wearing brands like BAT Sportsman.

Horseman was sold for three years before TAOs moved the court to halt sales of the product, when Knight had gained considerable market share.

Unlike the case of Nivea, the High Court and subsequently the Court of Appeal held that Horseman was a brand in its own right and Cut allowed to continue to sell tobacco.

But analysts are seeing a new major concern: the rise of companies that are faced with disputes relating to domain names.

A domain name is the term used to describe a company or a person's name on the Internet.

The disputes often revolve around people or companies that register domains that are similar to a known company.

One example is the Kenya Airways, which had to fight for his kenyaairways.com field, when there was a person registered, using a method known as' cybersquatting '.

Cybersquatting increase

Allegations of cybersquatting brands continued to increase, with a record 2329 complaints last year with the World Intellectual Property Organization (WIPO) WIPO Arbitration and Mediation.

This represents an increase of eight percent compared to 2007 the number of disputes dealt with, and brings the total number of complaints filed under Wipo Uniform Domain Name Dispute Resolution Policy (UDRP), since it was launched 10 years ago to over 14000.

"Cybersquatting remains a serious problem for trademark holders," said Francis Gurry, Director General of WIPO.

Given the truly global scope of disputes, the WIPO has presented the case for more than 100 countries in 2008.

Many

The United States of America, France, United Kingdom, Germany, Switzerland and Spain were the most frequent basis for complaint. However, the United States, the United Kingdom, China, Spain, Canada and France are the most common name by the defendant.

Analysts expect to increase the number of cases as the Internet Corporation for Assigned Names and Numbers (ICANN), which is responsible for managing domain names is preparing to launch many new areas.

Expectations of ICANN is to begin accepting applications by the end of 2009.

"This is a milestone in the development of the Domain Name System (DNS), and is a real concern for trademark holders," said WIPO. (source)