It is challenging to manoeuvre through Intellectual Property (IP) rights when two or more overlap. This is a factual and legal phenomenon that is yet to be analysed. Due to new hybrid technologies that defy established structure of the IP system, the issue of overlapping IP rights has become important.
Due to new technological developments some IP rights rarely occur independently. It is possible for one creative output to be protected by multiple IP rights concurrently such as trademark or industrial design and copyright.
Trademark law seeks to govern use of devices such as words, phrases, symbols, product shapes, or logos to identify and distinguish goods or services. Industrial design law seeks to protect visual designs of objects and consists of the shape, configuration or pattern or colour in three-dimensional form containing aesthetic value.
Copyright law, on the other hand, seeks to preserve the rights of artistic creators and protect the expression of ideas. All these IP rights are intended to protect different aspects of creativity.
Each of these IP is peculiar in its own way. However, different aspects of the same product can be protected by different types of IP simultaneously.
A machine, for example, can be protected under patent law while drawings of the machine enjoy copyright protection. Owners of intellectual creations can potentially rely on more than one IP to protect a single creation. Once the patent in the machine expires, the patent holder can invoke copyright to prevent production of the machine by competitors, effectively extending duration of the patent monopoly.
In Kenya the term of patents protected is 20 years after which the public is free to commercialise. It is obvious that it occasions a legal and practical challenge when various forms of IP are used simultaneously and allowed to overlap. Overlapping IP protection means the owner receives all the benefits flowing from the selected regimes, while benefits that would otherwise flow to the public are withheld.
This overlapping is problematic for different reasons. The main problem is that it may extend the duration of monopoly over an intellectual creation granted in one segment with rights that belong in another. When protection expires, IP rights vest in the public. Due to the overlaps however, IP monopoly may extend the period of protection where chosen IP rights have different periods of protection, hence denying the public the opportunity to exploit the creation.
]Most common law jurisdictions, have not formulated legal doctrines suitable for addressing overlapping IP rights. Some jurisdictions expressly prohibit multiple protections. However, in Kenya there are no legislative or judicial pronouncements yet setting down rules governing overlapping of IP rights.
The UK, for instance, developed equitable doctrines as a tool responding to challenges posed by IP overlaps.
Writer is an advocate of the High Court —[email protected]