Monday, 20 June 2016

HOW TO AVOID BUSINESS MISINTERPRETATION

Intellectual property is a fairly new subject
although its origins date back many years.
Where there is no intellectual property protection
other laws can be resorted to for remedial
action.
Take the example of the tort of passing off. Tort
refers to a wrongful act resulting in injury to
another’s person, property, or reputation for
which the injured party is entitled to seek
compensation.
The tort of passing off protects your business
from misrepresentation.
For example, if someone opens a business in
your name and rides on the goodwill of your
business to make profit then that is passing off
and it is actionable in court.
For you to succeed in a passing off claim you
must prove that the misrepresentation was made
by a trader in the course of business and that it
was intended to injure and damage your
business.
In some countries passing off has been listed as
a restricted trade practice. The tort of passing
off can therefore supplement a cause of action
where no trademark protection has been granted.
Claiming damages
Your business can therefore recover from a
tortfeasor (one who commits a tort) in the
absence of a registered trademark.
All you need to do is show that you meet the
requirements set out above and file an action in
court.
You would be claiming damages and can make a
claim for other orders like injunctions stopping
the tortfeasor from passing off your business.
Under Kenyan law it is not possible to trademark
your name or surname for the obvious reason
that names are not distinctive. Even then, the
Trademarks Act prohibits the trademarking of
names.
Recently there was a dispute between Chelsea
and Manchester United over the image rights of
former coach Jose Mourinho.
Apparently, Chelsea owns the trademark over
Mourinho. It is not clear how the trademark was
granted under the United Kingdom and European
Union intellectual property law offices. The UK
trademark was granted in 2003 and the EU one
in 2005.
Since it is not possible to protect your name as
a trademark under Kenyan law, how then do you
secure your image rights?
This is especially applicable to entertainers and
celebrities.
It is possible to use the principle of
impersonation where a third party has wrongfully
used your name or image to perpetrate a fraud
or a crime. If someone pretends to be you, so to
speak, and commits a crime or a fraud then you
can sue for damages.
Impersonation is a crime and you can have the
impersonator prosecuted. You can also recover
injunctive remedies other than damages for
impersonation.
Another law that may protect your image is the
law against forgery. In this case it becomes an
image right when somebody forges any aspect of
your persona such as a signature. Not only is it a
crime, it is also a civil wrong.
Intellectual property law may not always be
sufficient to address wrongs, especially if you
have not secured intellectual property rights. In
such instances you can resort to other laws to
the fill the gap.

Source: Business Daily

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