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Kenyan Premier League Teams Losing Out On Intellectual Property

The Kenyan Premier League (KPL) prides itself as one of the best run and stable football leagues in the East African region. Despite recent upheavals that were occasioned by the exit of some key sponsors, KPL matches went ahead uninterrupted despite muffled complaints about lack of payments to clubs. As the KPL makes efforts to replace or renew sponsors, football fans always query why there is such apathy by local companies to be involved in local football. If football is the most popular sport in the country (beating even the more successful athletics and sevens rugby)surely a product such as KPL should be a hot commodity to corporates? Yet, in assessing the net worth of our league, one of the key parameters has to be its branding abilities and tied to that the Intellectual Property involved. Unfortunately, most of the teams that play in the Kenyan Premier League have not bothered to curve out a brand that can be hailed as a product when the rights to the leagues matches are being negotiated. Only four out of the eighteen teams in the league have either registered trademarks of their crests or applied for the registration of the same. AFC Leopards, Gor Mahia and Nakumatt FC are the only teams with registered trademarks in the top tier football league in the country whilst Mathare United has applied for registration of its marks. Anciean Limited has also filed applications for Wazito FC that are pending registration. Four other teams that are corporate related teams such asTusker FC, Chemelil Sugar, Nzoia Sugar and Posta Rangers make do with an imitation of their parent companies’ trademarks that are not the same as their official club crests. Curiously, East African Breweries have registered Tusker Sports as a trade mark and left out Tusker FC. Whilst AFC Leopards have one validly subsisting trade mark (in two classes) registered in the year 2008, their previous three trademarks 32489-91 registered in 1984 were all allowed to lapse for non-payment of renewal fees. Incidentally, the Club has not protected its nickname ‘Ingwe’ as a trademark owing to a conflict cited by the Registrar in respect of previous trademarks registered by the club’s supporter’s trust. This points to the need for clubs to always work closely with affiliated groups to ensure there is no danger to its primary marks. Gor Mahia have two validly subsisting trade marks (one in each class) registered in the year2012 though the club has also not protected its nickname ‘Kogalo’ as a trademark. Related groups have however registered trademarks such as Gor Mahia Sacco and Goma Lotto though efforts by one company to register ‘Kogalo Night’ was refused by the Registrar inexplicably citing the ‘Kogelo Marathon Run for Charity’ trademark as being the closely resembling mark. Mathare United’s three trademark applications though made in the year 2011 are still not protected as the club has failed to comply with registration requirements that include paying advertisement fees for the marks to be notified to the general public in the Industrial Property Journal. Nakumatt FC has registered its two trademarks (one word, one word and device) though the same appear in the name of Nakumatt Holdings. The recent announcement that the Club is up for sale may mean that the purchaser acquired the trademarks for the registered proprietor though a new proprietor on weighing the goodwill in the trade mark can choose to change the same to align it to any new name of the club.

 Trade Marks are part of the assets of the clubs and the fact that so many clubs in the league have not even bothered to have their trademarks protected points to very shallow marketing ethos by the clubs and the Kenyan Premier League as a whole. The clubs’ crests together with sponsor logos are used on advertising banners thus where the clubs have not registered their trademarks, they run the risk of other persons imitating their crests. Clubs will also have legal problems taking action against persons who sell merchandise under their crests as trademark infringement is only operational and can only stand where the trademark is registered. The clubs may nonetheless pursue passing off even with unregistered trademarks. For those using their affiliated company logos without any formal application made to the Registrar of Trade Marks for license (or registered user) usage, they run the risk of opening up their mother company trademarks to abuse by others who may then cite acquiescence as the reason for their misuse. Most sponsors require the sporting entity to list its Intellectual property (usually the trademarks) and to warrant that the same shall be kept subsisting during the term of the sponsorship. KPL clubs will therefore have problems meeting this condition unless they register their trademarks. For instance if AFC Leopards cannot guarantee their Ingwe TV show as a trademark it heightens infringement issues. Unlike other leagues such as the National Basketball Association which holds the trademarks on behalf of the clubs and renews the same when due, KPL clubs have no such arrangement. This may be due to the fact that American sports do not have relegation whereas the Kenyan Premier League have comings and goings to the league. KPL as the body mandated to run the league ought to have educated the clubs on the importance of the Intellectual Property protection or if they have done so, they should ensure some form of enforcement of the same to increase commercial credibility of the league.

It is noteworthy that the Kenyan Premier League itself as a body does not have a registered trademark. Indeed, the logo that the league uses bears such a close resemblance to the Lion Air logo that one may conclude that creativity and intellectual property is not a forte of the league. The same could be an easy target for infringers who may cite the potential passing off of the logo if accused by the league. Curiously, the body that KPL is affiliated to being the Football Kenya Federation has also not registered its trademarks in the country. Even worse, nicknames such as Harambee Stars are also not protected under trademark law despite the lesson that many African nations learnt during the dispute by their fellow federation South African Football Association and Stanton Woodrush over the nickname Bafana Bafana. SAFA ended up paying huge sums reputed to be in the region of Kshs. 40 million to be the proprietor of the trade mark Bafana Bafana. Other sports federations should nonetheless also take cue. Whilst the Kenya Rugby Football Union registered its trademark 55732 in 2004 which was due for renewal in 2014, Shujaa, the much celebrated Rugby Sevens team is not registered as a trademark by the same Rugby Union. There are already several companies that own the Shujaa Trade Mark including Foot plus Limited and Shujaa Clothing Company Limited in classes such as clothing which may be of interest to the Rugby Union. With the dearth of trademark protection, is it therefore any wonder that the Kenyan Premier League clubs are largely unrecognizable? How would such clubs attract following within the country and outside Kenyan borders with little branding? How do such clubs protect their merchandising if they cannot even file a simple application to protect their trademark and protect their brands? Other clubs worldwide have recognized merchandising as a revenue stream and protected their brands in a major way. Barcelona FC have 300 filed or registered trademarks whist Manchester United have a count of 271. Even players have also protected their trademarks with Neymar having 47 trademarks to his name (including his logo NJR). Lionel Messi has 33trademarks. In Kenya, Manchester United has equally protected its trademark 63155.Kenyan Premier League clubs should up their game and ensure they have adequate intellectual property protection on this important aspect of their business. Otherwise, the tag of being an organized league will be a hollow one and probably untrue.

 

The writer is an Intellectual Property
and Sports Law lawyer and former
Deputy Secretary General of AFC Leopards.
murunga@simba-advocates.com
Categories Articles

Terrorism & Human Rights: THE CRITICAL INTERPLAY

Introduction

The rudimentary relationship between human rights law and the phenomenon of terrorism, with particular attention to the interrelation between international human rights law and counter-terrorism responses cannot be gainsaid. The boundaries between human rights law and international humanitarian law (IHL) are not adjoining, but rather overlapping. Responses to terrorism, whether understood as “war” or law enforcement, involve choices that have repercussions for the rule of law, its advancement, and observance.

Terrorism is indefensible, unacceptable, and certainly unjustified and thus needs to be stopped and society protected. There’s however little point in doing so if the results would be loss of the freedoms that define the very society we are in the struggle to protect. These freedoms exist through institutional units and the control imposed on government action, thus our core challenge remains to provide a forceful institutional response to violence while controlling that response. Terrorism is yet another threat to social order that needs to be met in a controlled fashion. Issues of Human Rights violations have been on the rise owing to the enactment of counter-terrorism legislation in several countries that contravenes the spirit of human rights law.

It is worth noting that democracy, rule of law and individual freedom are relatively intertwined such that without individual freedom and the rule of law, real democracy cannot exist and vice versa; and on the other hand, the rule of law and individual freedom are inconceivable with an anti-democratic regime. These values are thus interdependent; in a modern democracy, each is equally advanced. The core remains that human rights are a guarantee and a precondition for individual freedom. However, they will only be respected in a society where the State upholds the rule of law, even under challenging circumstances as brutalterror attacks.

1. Terrorism and its unique aspects

Terrorism and the resulting effect of the war on terror remains a thorn internationally. This war, like any other, requires preparations at all levels of command, weaponry, special tactics and rules of engagement, and a legal framework within which to act. But despite the unanimous denunciation of terrorism by all Nations, it has so far been difficult to meet these requirements. A clear and specific definition of “terrorism” remains the major contention.

Any war is simply a series of actions with specific targets using a sequence of different tactics and successive measures that at all times should be under control until the strategic goal is achieved, which is usually tied to the political or economic interests of the warring countries. In terrorism, what is this target? A person? A nation? A doctrine? An international network? There needs to be a clear way to identify, and therefore label, the supposed “terrorist.”

The second concern is the lack of a uniform legal framework governing the war against terror. The offence of “terrorism” and the actor “terrorist” is undefined in any law and therefor a major challenge to successfully prosecute terror suspects without raising human rights related concerns since treating terrorism just as any other crime seems too lenient considering the gravity of the harm.

In the existing legal framework, terrorism as an offence has been addressed under an amorphous legal framework. This denotes that terrorism is not recognized as an offence legallyper se and therefore is viewed disjointedly. Terrorism is thus prosecuted under different categories of offences as perceived respectively; as an international crime, a crime against humanity, a war crime and as genocide. This is however complicated as such acts of terrorism have to fit within the respective definitions to warrant its prosecution.

 2.Terrorism and the Use of Force

International law proscribes the use of force between states as expressed in Article 2(4) of the Charter of the United Nations (UN Charter). This prohibition has attained the status of jus cogens. However, the charter allows two exceptions for use of force; under Chapter VII the Security Council can allow use of force in extraneous circumstances to restore international peace; and Article 51 allows for use of force in exercise of a State’s inherent right of self-defense as well as backed with the 2004 International Court of Justice’s(ICJ) Wall advisory opinion that clarified the context of the use of force. Invoking the latter justification has however, been marred with controversies since not every instance of the use of force against a state is deemed to be an armed attack under Article 51. Escalating this controversy is the war on terror. International law regulates both jus ad bellum and jus in bello.

There has emerged a new ‘International anti-terrorism law on the use of force’. Its emergence has helped shape the broad-spectrum of law on the use of force by curing old controversies on the concepts of pre-emptive, preventive or anticipatory self-defense. Prior to 9/11 the norm was that an ‘armed attack’ must have occurred before the right on self-defense could be exercised. The Bush doctrine, post 9/11 order by anticipatory self-defense nevertheless triggered the international community, shifting its classical strict approach to a fairly middle-ground of pre-emptive self defense.

  • Principle of proportionality and the Use of Force

It is imperative to exemplify the extent and justification of use of force by states in the face of brutal terrorist attacks.The principle of proportionality in the use of force is a necessary, sensible and humane doctrine of international law. For any use of force to be lawful, it must be proportionate. Contemporary understanding of proportionality is informed by Article 51(5)(b) of the 1997 Additional Protocol 1 to the 1949 Geneva Conventions defining an indiscriminate attack. The principle prohibits attacking a military objective if doing so will result to a loss of civilian life, damage to civilian property or damage to the natural environment that outweighs the value of the objective. This principle works in conjunction with other fundamental principles of IHL including the principle of discrimination, necessity and humanity.

Counter-terrorism measures are hence, governed by the principle of proportionality. The measures taken in response must be proportionate to the harm caused by the wrong. Proportionality requires an assessment of the means to accomplish the lawful objective. When states have no right to resort to force or no right to resort to force to the extent they do, the principle of proportionality governing the conduct of force still applies.

 3. CONCLUSION

The global war on terrorism clearly straddles the line between law enforcement and national security. We are clearly at war, but the stated objective of that war is, at least in part, to bring wrongdoers, (terrorists) to justice. It is thus vital that a degree of balance be achieved between civil liberties and security.

There is therefore need to have in place a clear and concise anti-terrorism and counter-terrorism legal framework with precise emphasis on rules of procedure, sentencing as well as definition of the vice and its perpetrators. Every criminal suspect deserves to be affordedthe fundamental principles of criminal law; including non-bis-in-indemnullum crimen sine lege and nulla poena sine lege principles, presumption of innocence, the right to a fair trial and the right to be convicted only on the basis of individual penal responsibility.

In light of the foregoing, even in the face of the brutal maim and murder of the innocent students in a grizzly manner at the Garissa University in Kenya, upon apprehension, the suspects of the terror attack must be dealt with, though inexorably, but within the confines of fundamental human rights in the context of fair trial.

The use of force by a state, as observed, may be legally permissible but disproportionate. The ICJ made this point in the 1986 Nicaragua Case, where it distinguished minor armed exchanges or “frontier incidences” from attacks that give rise to the right of self-defense. The Al Shabaab attack at Garissa University gives rise to Kenya to use the level of force permitted in self defense. In this regard, should Kenya opt to exercise its right of self-defense, the force used against the Al Shabaab militia must respect the principle of proportionality.