Amani National Congress, ANC, ANC Kenya, Cap.506, Kenya Trademarks Act, Kenyan Trademark rules, Likelihood of confusion, NASA Kenya, National Super Alliance, Nice Classification, Paris Convention, Protection of well-known trademarks, Trademark registration, Trademarks, WIPO, WTO Agreement
With Kenya’s next general election scheduled for 2017, the campaign spirit is in the air and new political parties and alliances branding themselves to attract potential voters. Two of these newly minted political parties cum alliances are Amani National Congress (ANC) and the National Super Alliance (N.A.S.A). Readers may associate “ANC” and “N.A.S.A” with the well known political party; Africa National Congress (ANC) in South Africa and the National Aeronautics and Space Administration program (NASA) in the United States. This blogger will consider the “trademarkability” of “ANC” and “N.A.S.A” in Kenya.
Trademarks are classified using WIPO’s Nice Classification for goods and services, although it may be argued that the “services” offered by the political parties are in two different countries, Kenya and South Africa or that NASA in the United States offers vastly different services in the aeronautical space as opposed to the “National Super [political] Alliance” in Kenya.
[T]he proprietor of a trade mark which is entitled to protection under the Paris Convention or the WTO Agreement as a well known trade mark, is entitled to restrain by injunction, the use in Kenya of a trade mark which is identical or the essential part of which is identical or similar to his, in relation to identical or similar goods or services, where the use is likely to cause confusion among the users of the goods or services. – Section 15A(2) of the Trade Marks Act
Both ANC and NASA are registered trademarks in South Africa and the United States, respectively. In light of this, s15A(2) of the Trade Marks Act Cap. 506 of 2012 provides for the protection of well-known trade marks in Kenya (whether or not the trademarks are registered in Kenya) and entitles the proprietor of the trademark to apply for an injunction on the use of the identical trademark for similar goods or services in Kenya.
An example of this is found in Weetabix Limited v Manji Food Industries Limited  eKLR; where an injunction was sought by the plaintiff and granted by the court barring the registration of the trademark “Weetabix”. In paragraph 49 of the judgment, Ogola J recognised the protection of well-known marks in Kenya and the intent to effect the protection of the well known mark in the Kenyan market place and stated this protection should be enforced by Kenyan courts. One of the reasons behind this is to prevent the likelihood of confusion amongst users of the goods or services in the market place. Section 15A(4) of the Trade Marks Act also that provides that a trademark may not be registered if it is “likely to impair” or “take advantage of the distinctive character” of a well-known trademark. This is despite section 11 of the Trade Marks Act permitting the registration of a trademark, if the mark is a bona fide use of a person’s business name, as in the case of “ANC” and “N.A.S.A” provided that the alliance seeks registration.
A trade mark shall not be registered if that trade mark, or an essential part thereof, is likely to impair, interfere with or take unfair advantage of the distinctive character of the well-known trade mark.- Section 15A(4) of the Trade Marks Act
In addition, Rule 16(c) of the Trade Mark rules of the Kenyan Trade Marks Act Cap. 506 of 2012 also states that “any insignia of any foreign state or international intergovernmental organization” may not appear on a trademark or appear as part of a trademark application. Insignia referring to a distinguishing mark or token of something; in this case, a trademark. One could argue that the mark “NASA” conjures up the space programme in the United States, as opposed to the political party in Kenya.
Granted the premise of the registration of these political institutions was to stir up the minds of Kenyans to associate these names with political might during the campaign and voting session, however, that does not derogate from intellectual property principles and rules for the registration of trademarks that Kenya adheres to.
Subsequently, this blogger suspects that ANC and NASA would have an uphill battle trying to register their marks as trademarks in Kenya given their insignia, Kenya’s adherence to the protection of well-known trademarks under the Paris Convention, the likelihood of confusion and the rules regarding the registration of trademarks.