Pix via Pinkforestcafe.com

By Cathy Mputha

Disneyland has been granted a US trademark over the words “Hakuna matata” vide registration number 27006605. Hakuna Matata is a Kiswahili slogan meaning no problem, no worries. This slogan is widely used in East Africa, especially the coastal region as a response to greetings.

Several of Disneyland’s cartoons contain the said slogan and it is easy to understand why Disneyland would seek trademark protection for the same.

Totally unrelated to the Disneyland trademark, there are a lot of lessons for Kenya and the East African Community (EAC) to learn. The first is the need to have a structured framework to protect our national and regional heritage. Kiswahili is spoken throughout EAC and it would be unreasonable for one particular country to claim ownership of the language. However, some words form part of our heritage and ought to be protected where possible.

It is unfortunate that there has been a lot of pilferage of African culture over the years, through the use of intellectual property rights. This means that heritage that ought to belong to a certain group of people is instead pilfered using legal methods, whereby third parties end up being awarded sole rights. It has happened before. In 1998, the Romanian band Enigma was sued by the Duana’s for unauthorised use of their song without giving due credit.

There are certain remedies that can be resorted to, in order to enhance protection of cultural heritage and specifically trademarks. It may be worth the effort for the relevant governments or communities to apply for expungement of already granted trademarks. However, there are certain thresholds that ought to be met for expungement of marks that contain heritage.

There are avenues for this and some include World Intellectual Property Organisation (WIPO) remedies. When it comes to domain names when one person registers a name that bears semblance with a registered trademark, then the trademark owner can have the offending domain name transferred. For example if someone were to register a domain name as www.kenya.com, then it is possible for the government to have this transferred to itself.

Similarly I believe there is a remedy where one registers a trademark that belongs to a community or a group.

These types of cases, throw the buck to State agencies such as Brand Kenya. I believe an agency such as this one, ought to protect indigenous slogans and even sayings as part of our heritage. If such slogans were protected globally then it means corporates that seek to use indigenous slogans would have to pay royalties.

Kenya can borrow a leaf from Rwanda in undertaking this strategy. Rwanda had protected the local slogan, “ndiumunyarwanda” as a trademark. A third party corporate was forced to pay licences fees to the Rwandan government when it sought to manufacture sweets that contained the same slogan. In this way, the Rwanda government ensured that no foreign entities gained from use of indigenous slogans and it also earned revenue from the same.

It is a wake-up call for the EAC to work on the EAC identity and the EAC marks so as to protect jointly owned regional heritage. The EAC identity has been provided for in the EAC Treaty.

This Article first appeared in the Business Daily

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