Protection of Traditional Knowledge & Culture Act

Implement laws on intellectual property

My column on November 25, 2018 generated a lot of attention on social media. However, some of the issues I raised were taken completely out of context, prompting this clarification. Firstly, the said article was not challenging the Disneyland trademark. I clarified that the commentary stressed the need to protect African cultural heritage, but it had nothing to do with the Disneyland trademark.Therefore, the article did not seek to argue the legality or illegality of the said trademark but was a call for initiative and proactivity to protect cultural expressions. My position is that the Disneyland trademark is valid.The article I wrote supposedly generated a lot of social media debate that led to a petition for Disneyland to give up its rights to the Hakuna Matata trademark; which again is out of context.The petition arose from social media debate and not my past article. While I agree with some of the lawyers who have actively contributed to this debate that the petition does not have legal merit given the validity of the trademark, I would like us to look at the bigger picture.For one, in as much as the petition may not be based on technicalities, legally, I would argue that the public has freedom of expression and speech that is guaranteed in the Constitution.I note that the petition was not limited to Kenyans only, but garnered international participation. However I am of the view that this petition is a sign that the public appreciates its freedom to expression and to this extent would let the public be.Without getting into the legalities of the trademark, I believe that the public is sending out a loud message that I encourage stakeholders to listen to.

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Stakeholders should listen keenly to the undertones being raised through this petition, leaving the legalities aside. The message is that Kenyans value their heritage and would like it protected.The comments on the validity of the Hakuna Matata trademark are true but the emphasis on the past article is what are we doing to uphold our cultural heritage.How will stakeholders focus on upholding Article 44 (2) where Kenyans have been given a right to language and culture? A critique has been made on the Protection of Traditional Knowledge & Culture Act in that this law isn’t clear on who the implementing agency is. If this is the case, there is a need to amend the Act. Stakeholders ought to give priority to understanding that cultural heritage was important enough to be enshrined in the Constitution. We need a timely implementation of the Act.Rwanda, for example, earned a lot of royalties from licensing a trademarked national term ‘ndiumunyarwanda’ which I believe is the equivalent of the Kenyan ‘Najivunia kuwa Mkenya.”This country can raise lots of revenue if there was a sound implementation of laws.I understand the provisions in the intellectual property laws. However, what is the bigger game plan and strategy, putting the law aside?I trust this article puts the issue to rest.

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