In our last blogpost here, we announced the start of a new blog series that recaps each episode of the TV show Lions’ Den from an intellectual property (IP) perspective. The first episode aired on October 10th and has been uploaded to the KCB Group YouTube channel (see above). We shall now consider some of the interesting IP issues flowing from two of the six pitches made in the episode.
First in the Den was Ms. Navalayo Osembo, the co-founder of Enda Athletic, Inc. a company that claims to have created the first world-class Kenyan running shoes based on the advice, skills, and experiences of great Kenyan athletes. After a convincing pitch, Osembo asked the Lions for Kshs 5,000,000 in exchange for a 1.5% stake in the company. After the pitch, one of the Lions asked Osembo: “Do you have any patents, anything unique that gives you an advantage around this product? To which, Osembo replied: “Yes, we already lodged our patent application with the US Patent Trade and Office Organisation. The patents include basically the whole mid-sole and the spear tip with Enda logo.”
A few issues require clarification. First, the U.S. Patent and Trademark Office (USPTO) is the correct name of the body that grants design patents to any ornamental design that is used for a useful device. So, a unique running shoe design may be protected by design patents. In Kenya, the equivalent organisation is Kenya Industrial Property Institute (KIPI) and the equivalent design patent protection in Kenya would be industrial design registration.
Interestingly, Osembo neglected to mention that Enda Athletic has at least two trademark applications pending before the USPTO including one for the device consisting of a horizontal image that represents the base of a spear head and a composite mark incorporating both the word Enda and the spear head device. As readers may know, trade mark registration is essential because trade mark serve to distinguish one’s own goods and services from those of other competitors in the market.
Second in the den was Mr. Kevin Abiero Odhiambo, a freelance creative writer and illustrator who is the brains behind “The Culprits”, a comic book which has been on sale in Kenya since mid 2014. His offer to the Lions was Kshs 100,000 for a 20% equity stake in his comic book business. From an IP perspective, it is important to point out that there are several trade mark as well as copyright considerations for businesses such as Kevin’s. In terms of trademarks, it is possible to have several trademarks related to the comic book series – the name “The Culprits”, logos, slogans, and the name and possibly depiction of the characters. Such trademarks would be very useful in marketing Kevin’s work and perhaps with the investment and support from the Lions, monetise the goodwill created around such brands through licensing. In terms of copyright protection, readers may know that an artist and writer such as Kevin has copyright rights in their work the moment they put fingers to keyboard or pen to paper. As the owner of their work, they can control where their work is copied, distributed, displayed, and what derivative works can be made.
That’s it for Episode 1. Stay tuned for more IP insights when we review Episode 2 next week.