9) i) ii) iii)

Property Law Nature and classification of property Ownership and possession Patents, copyrights and trademarks

NATURE OF PROPERTY The term property has been used in a variety of senses !n the widest sense, it can be said to include all the legal rights of a person of whatsoever description i e , the property of a man is all that is his in law !n a narrow sense, property includes the proprietary rights of a person and not his personal rights Proprietary rights constitute his estate and other property while personal rights constitute his status or personal condition !n another sense, property includes only those rights which are both proprietary and real Property in the narrowest sense includes only the right of ownership in material things The term property can also be used in two different senses as distinguished below" i #ale of $oods %ct talks of property in goods when it means the ownership of them !n contract of sale of specific goods, the seller transfers the property &ownership) in goods to the buyer when the contract is made, and it is immaterial whether the time of delivery or of payment, or both, in the future Trling Vs Baxter % haystack was burned down before the buyer took it away !t was held that the loss fell on the buyer and he had to pay the price because the property was passed to him at the time of the contract ii 'sually the word property means the things which are capable of being owned, although they need not e(ist in tangible form )ence in this sense the term property includes" a Things in Possession * such as pens, books, desks, chairs, watches etc These are also known as choses in possession b Things in action + These have no physical e(istence and include things such as debts, patents, copyrights, trademarks, shares, negotiable instruments, etc They are called choses in action, which can be enforced only by action and not by taking possession Thus a thing or things capable of ownership need not necessarily be tangible, i e capable of being touched !t may be a right to fish in someone,s river or a right of way over someone,s land CLASSIFICATION OF PROPERTY -any legal systems divide property into movable and immovable, while .nglish law has preferred to classify it into real and personal /eal Property /eal property means land, including building on land and trees and crops that grow on it, and the rights over land This refers to immovable property including rights emanating from such property e g land building e t c Personal property %ll other rights, for e(ample, the right of occupancy of a house or a piece of land for a certain number of years, or right of ownership of a watch, or a claim to be paid a sum of money at a particular time, are classed as personal property !t thus refers to any property other than real property and includes movable property e g furniture, books e t c it is further subdivided into0 * 1hoses !n %ction"i e !ntangible things e g stocks and shares, patents, copyritghts, negotiable instruments etc This is an intangible right which is incapable of physical possession e g copyrights, trade marks, goodwill of a business e t c

* 1hoses !n Possession i e Tangible e g tables and chairs etc This is a tangible thing which is capable of physical possession This includes all moveable property in material form e g a car, a piece of meat e t c !llustration" * !f you have a fleet of cars in your showroom, you have a chose in possession 2ut if the cars were in course of shipment or in a shipping company3s warehouse and you held a document showing your right to claim the cars, that right evidenced by the document would be a chose in action The distinction between a real and personal property is of historical origin and is based on the different kinds of remedies available to a dispossessed person. In early English common law actions fell into two classes: Real actions and ersonal actions for recovery of damages. !and was the only ob"ect of which restit#tion in specie $i.e. specific performance% co#ld be enforced& and so it follows that it was called Real property. 'ny other property was classified as personal. property& incl#ding leases and persons who were deprived of personal chattels co#ld not enforce their act#al recovery b#t had to accept damages. ACQUISITION OF PROPERTY There are many modes of ac4uiring property #almond refers to four modes i e &i) 2y possession0 property can be ac4uired by possession )e who claims property as his own and also possesses it may get title to it,s ownership by law &ii)2y adverse possession0 this is the creation of alright over the lapse of time !f a person is in actual possesses of land over a period of 56 years without interferance, he may be recogni7ed as the true owner &iii)2y agreement0 property can be ac4uired by an accepted proposal communicated between two or more parties of a common intention &iv)2y inheritance0 this is the passing of certain rights in property from one person after his death to the other by succession &v) Prescription" % person who has been en8oying an interest over land in a period of 69 years obtains ownership interest OWNERSHIP AND POSSESSION OWNERSHIP The idea of ownership developed over a long period of time with growth of civili7ation when people began thinking in terms of mine and thine .arlier on, there was no distinction between ownership and possession, but with passage of time, this distinction became clearer %ll legal systems distinguish between ownership and possession :eaton says that the term ownership is one which is easy to understand but difficult to define with e(actitude Ownership is a matter of law and it denotes the relation between a person and the ob8ect forming the sub8ect matter of his ownership % person is the owner of property if he has the ultimate right over its use and disposal Ownership has the following essential elements" a The owner has the right to possesses the thing which he owns b The owner has the right to use or not to use the thing he owns c The owner has the right to destroy, alienate or sell the thing d Ownership is indeterminable in duration !t endures forever e Ownership has a residuary character f The owner has the right to e(haust the thing while using it if the nature of the thing is as such The owner has right to keep out strangers )owever, the owner may temporarily part with one or more of his right e g to a lessee but note that when the lease ends the property automatically goes back to the owner This is called right of reversion ;hen the lease is in e(istence, the tenant can further lease &alienate) has right to a third party This shows that although alienation is basic right of the owner, it doesn,t automatically denote &mean) ownership Thus two main components of ownership are" i Possession ii /eversionary rights

'ltimately, the state is the actual owner of all land in :enya since it would revert back to the state for lack of heirs Ownership may be ac4uired in any of the following ways" a Originally" * where a person creates something new or ac4uires something that no one claims or has been abandoned by its original owner Original ownership may also be ac4uired by long, continuous and undisputed possession of a thing as owner and also by accession <or e(ample, the owner of a tree has the right to its fruits b =erivatively" * ;here a person sells his goods to the buyer or he makes a gift to another, the right of ownership is transferred to the latter c 2y succession" * where the previous person dies and the property passes to his heir or to someone else under a will POSSESSION >ust like ownership, the concept of possession also developed gradually over the course of many centuries 'nder the common law and the /oman law, possession denotes physical control over a thing The legal importance of possession started to emerge when legal issues became identified with possession ;hile ownership is a matter of law, possession is a matter of fact Possession refers to physical detention coupled with the intention to hold the things detained as one3s own !t refers to having custody of a thing coupled with the intention to e(ercise e(clusive control over it Possession is the prima facie evidence of ownership The first possessor of a thing which as yet belongs to no one, may get a good title of right !t is often said, ?possession is nine points of law? !t means possession is best evidence of ownership e(cept as against the true owner Therefore a person in possession of a thing does not have to prove that he is the owner The person who disputes his ownership must establish his right over the thing by producing valid evidence of ownership Possession is therefore a matter of policy, not a matter of fact The 4uestion is who ought to have the legal incidence or benefit of possession !llustration0 Thus if % throws his old suitcase into the street, it indicates that he has given up its possession and the finder of it could become the owner without paying for it % person, in possession of a car does not have to prove that he is the owner of the car he is driving On the other hand a person who disputes his ownership must establish his right over the car by producing valid evidence of ownership The meaning of possession will therefore depend on the conte(t and the relevant policy consideration e g under property law, where a tenant enters into possession then re4uirements for a valid lease may be waived through part performance without necessarily having satisfied the legal re4uirements for a valid tenancy )ence for the purposes of the doctrine of part performance, possession is actual, physical control, with time the idea of possession ceased to be embedded only in physical control ;ith the growing need to protect private property the law found it imperative to ascribe actual control, physical control was defined as custody or detention only Possession can be converted into ownership under the following circumstances" a !f wrongful possession of land continues for twelve years, and of goods for si( years b The holder of a negotiable instrument, a factor, and a seller in market overt can give a better title than they themselves, provided the buyer takes them in good faith and for value 1haracteristics of possession" 'nder common law and /oman law, possession included the following0* i Possession was prima facie evidence of ownership ii Possession was a basis of certain remedies e g the remedy of e8ection iii !t was an important condition in ac4uiring ownership iv Possession could confer a good title on another even though he had no title himself

!n law Possession re4uires two ingredients" i 1orpus possidendi &physical possession) ii %nimus possidendi domni &intention to e(clude others or intention to call as own) INTELLECTUAL PROPERTY (Perso a! Property) !ntellectual Property is a property that arises from the human intellect !t is a product of human creation !t is the creation of the human intellectual process and is therefore the product of the human intellect or mind !ntellectual property protects applications of ideas and information that are of commercial value They are rights to stop others from doing certain things, to stop pirates, counterfeits, imitations, etc The rationale for protection of intellectual property is to stimulate and promote further creativity Ob8ects of !ntellectual Property !ntellectual property can simply be understood to mean non*tangible products of human inventiveness and intellectual endeavour !t includes information that has been captured or recorded, to the e(tent that it has been given definite shape and some more or less permanent form by an author or editor or compiler in writing, or in a computer or on a sound recording !t covers works of imaginations and inventiveness !ntellectual property therefore covers Patent, 1opyrights, Trade marks and =esigns, Passing*off and counterfeiting etc Patents and trade marks and perhaps trade secrets, are sometimes referred to as !ndustrial Property !ntellectual Property comprises the following types of protection" !ndustrial Property /ights &Patents, Trademarks, !ndustrial designs, 'tility -odels, Topography of integrated circuits and $eographical !ndications) 1opyright &@iterary and artistic works) Protection of New Aarieties of Plants %dministration !n :enya three government ministries administer intellectual property rights :enya !ndustrial Property !nstitute &:!P!), a body corporate in the -inistry of Trade and !ndustry administers the !ndustrial Property %ct 6995 of the laws of :enya covering Patents, Trade marks, #ervice marks, !ndustrial designs and 'tility models 1opyright is administered by the 1opyright 2oard of :enya an office in the %ttorney $eneral 1hambers under the 1opyright %ct 6995 of :enya The Plant varieties %ct of :enya is administered by the :enya Plant )ealth !nspectorate #ervices :.P)!# !mportance !ntellectual property has long been recogni7ed and used by industriali7ed countries, and some developing countries, as an important tool of technological and economic development -any developing countries are becoming increasingly aware that it is in their best interests to establish national industrial property systems, where they do not e(ist, and to strengthen and upgrade e(isting systems which, inherited from their historical past, are no longer ade4uately responding to new needs and priorities 1ountries have laws to protect intellectual property for two main reasons One is to give statutory e(pression to the moral and economic rights of creator for their creations and the other is to promote, as a deliberate act of government policy, creativity and to encourage fair*trading This contributes to economic and social development Protection !ntellectual property is protected by national laws, which are uni4ue in each country #ome countries including :enya have become signatories to multinational treaties and agreements, which provide some

form of harmoni7ation in the protection of intellectual property :enya is a member of the following Organisations, Protocols, treaties and agreements" ;orld !ntellectual Property Organi7ation ;!PO %frican /egional !ntellectual Property Organisation +%/!PO Trade -ark @aw Treaty* now #ingapore Treaty on the @aw of Trademarks since 6Bth -arch 699C Paris convention for protection of !ndustrial Property -adrid 'nion &-adrid %greement D Protocol) on !nternational /egistration of -arks ;e are about to 8oin Nice %greement on classification of Trade and #ervice -arks ;e use Aienna 1lassification although not members of Aienna agreement &There is provision in Trademarks %ct for both Nice and Aienna classifications) Patent cooperation treaty P1T 2erne convention on 1opyright Nairobi Treaty on the Protection of the Olympic #ymbol 'POA for New Plant varieties Trade /elated %spects of !ntellectual Property /ights &T/!P#) :enya,s e(isting intellectual property legislations have been drafted in line with those provisions /ights 1onferred The owner of the intellectual property right has the right to preclude any person from e(ploiting the protected property by any of the following actsE making, importing, offering for sale, selling and using the property0 or stocking such product for the purposes of offering it for sale, selling or using the property !n return for the grant of a patent for e(ample, the inventor places the technological information surrounding the invention in the public domain This is achieved by publishing a patent document %ny invention, which is not protected in a given country, is considered as being in the public domain in that country #uch invention could be used in that country for its own technology development without the risk of infringement The duration of a patent is usually limited to twenty years Once this period has e(pired, all third parties may use the information and thus e(ploit the invention Prote"t#o Pro"e$%res P%T.NT &!nventions) %n e(clusive right to be the only maker or seller of an invention for a specific number of years % patent is granted by a national patent office or by a regional office that does the work for a number of countries, such as the .uropean Patent Office &.PO) %t the !nstitute applications to grant patents are received from four routes, namely" local %/!PO P1T &;orld intellectual Property Organi7ation*;!PO) foreign * direct % patent describes an invention for which the inventor claims the e(clusive right !nvention is a new solution to technical problem &product, process and new use) + !t must be new

+ )ave an inventive step + 2e !ndustrially applicable

%pplication Procedure for a patent %pplication &%pplication <orm, %pplication fees, Power of attorney if represented by agent) Patent document &Title, field of technology, background art, brief description, detailed description together with drawings, claims, and an abstract) #earch #ubstantive e(amination Publication in :enya at the :enya $a7ette $rant of the Patent Priority + 56 months %t the substantive e(amination stage, the patent can be re8ected on the following grounds0 5 @ack of Novelty" That a claim of the specification includes something which had been published in this country or commonly in use but not by way of e(periment 6 Obviousness" That a claim includes something that was obvious, at its priority date, in view of what had already been published or publicly used F !nsufficiency" That the specification does not give clear and full enough instructions to enable a skilled man to carry the invention into effect G Not an invention" That the alleged invention is not the sort of thing that can be patented at all H Publication abroad" That the invention is not new, or is obvious, in the light of the things published or use outside the country C ;rongful amendment" That the specification has been altered, so as to disclose something not disclosed in the specification when it was first filled, or has been altered since the patent was granted to made the claims cover something they did not cover before I Prior claiming" That the invention is already the sub8ect of a valid claim or earlier priority date in another patent B %mbiguity" That it is uncertain what a claim means J !llegality" That the primary or intended use or e(ercise of the invention is contrary to law e g a patent for an improved way of forging bank notes 59 @ack of basis for claims" That the claims are wider than is 8ustified by what the specification discloses Patent last so long as renewal fees are paid for 69 years from the date when the full specification of the invention is filed at the Patent Office Patent protection, however does not become fully effective until the specification is published by the patent office This will take up to 5B months from the date when the patent is applied for The patenting of a 4uickly produced and short*lived line of goods may thus be completely useless since the patent may have lost its importance before it comes fully into force 'T!@!TK -O=.@ .(clusive right for invention stopping others from using it without his permission % utility model is an invention that can be utili7ed in industry, agriculture, education services or environmental conservation and which relates to shape, structure or assemblages of articles + !t must be new" not publicly known, not appeared in printed work + 2e !ndustrially applicable

Terms of protection smaller I*59 years, less stringent re4uirements !N='#T/!%@ =.#!$N !ndustrial =esign is the ornamental or aesthetic aspect of a useful article of industry The aspect that gives special appearance to a product of industry %pplication Procedure for an !ndustrial =esign o %pplication form o %pplication fees o /epresentation of the design &photo, drawing etc) o 1omparison with e(isting designs o Publication &opposition period C9 days) o /egistration o Priority C months 1ar designs, furniture designs etc T/%=. -%/:# % trade mark is a registered design or name used to identify a manufacturer,s goods Trade marks have become more and more important in recent years :enya !ndustrial Property !nstitute, the official body for registration of trade and service marks in :enya, is mandated by the Trademarks %ct 1ap H9C, &%s last amended by the Trade -arks &%mendment) %ct, 6996), of the @aws of :enya to give protection to trade marks and service marks % trade mark can take many forms The law states that a trade mark may be any symbol that Lis capable of identifying a company,s goods or services !t can be a word, a picture or a combination of both <or e(ample P)!@!P# is protected as a word trade mark %n e(ample of a picture protected as a trade mark is 2P #hell,s red and yellow seashell The name <lorida 1asino together with the stylised &letters in italics) is a combined trade mark comprising a word and a picture 1olours &think of the yellow :odak trade mark), combinations of numbers and letters &such as MB, GI55, %:NO) and drawings or shapes &such as the %didas stripe or the 1oca*1ola bottle) are also considered trademarks !t is impossible to imagine life today without trademarks Not only are trademarks necessary to differentiate products or services from each other, but often they have an important e(pressive or even emotional value as well The use of trademarks is particularly important in advertisement as a strategy for marketing Trademarks help consumers to distinguish the products of one proprietor from those of others in the market place -ore usually they associate the trade mark with the reputation &4uality) of goods emanating from the proprietor 1reating a product usually involves ma8or investments, hence the need for the product to be protected The Trade -arks %ct helps the producer protect the trade mark /egistering a trade mark is an important first step for everyone towards safeguarding a Trade mark and combating imitations %pplication for registration of a trade mark can be done directly at the !nstitute or at the place of a trade mark specialist authorised as a representative

%pplication procedure for registering a Trade mark o <irst of all, the applicant must re4uest the relevant application forms The forms are obtained free of charge from our !nstitute and should be completed in .nglish language o 1ompleted forms can be submitted in person or by mail The necessary information and fees payable are supplied along with the forms o The !nstitute checks the completeness and accuracy of the information entered and documents submitted o !n a few weeks the applicant receives the results of the search or e(amination o !f the trade mark is available for registration upon e(amination, it is approved for advertisement in the !ndustrial Property >ournal to allow for any opposition, within a period of si(ty days from the date of the >ournal o !f there is nobody challenging the intention to register the advertised trade mark, the trade mark is registered and the applicant is issued with a 1ertificate of /egistration %n entry in the !nstitute,s Trade marks /egister is valid for ten years from the date of the application Three months before the validity lapses, the trade mark holder is notified in writing to this effect so that an application for renewal can be made in good time for another set of ten*year period Trade mark protection is indefinite as long as it is renewed The Office can refuse to register certain trade marks, for e(ample in cases where these contain purely descriptive elements &e g tasty 1heese for daily products or life insurance for life insurance) Or even on moral grounds The following are factors to consider whether one is a registerable mark" a !t must be a mark capable of being represented graphically" That is, it must be a device, brand, heading, label, ticket, name or an abbreviation of a name, signature, word, letter or numeral shape of goods, packaging, or combination of colours or any combination thereof which is capable of being graphically represented b be used as a trade or service mark" 'nless it is used to indicate a business connection between the owner of the mark and his goods or services !t does not matter what sort of connection This can be manufacturers, dealers, importers etc c -ark must be distinctive" The most important re4uirement for a registerable mark is that it must be distinctive, in the sense of being suitable for distinguishing goods or services with which it owner has some business connections from those or other concerns <or the purpose of deciding the 4uestion of distinctiveness the law divides marks into there sorts as bellow" i -arks presumed to be distinctive" -ost of these are invented or fanciful words and designs These are only refused registration if they are proved to be in common use in the trade concerned or are too like e(isting marks ii -arks which can never be distinctive" These are marks that anyone might want to use, such as names of countries or substantial towns e t c iii -arks whose distinctiveness must be proved" These may become registerable when used over a sufficient period has made them familiar a trade or service marks d =istinctiveness in practice" !n all other matters, the fundamental 4uestion is if the registration would embarrass other traders, e g if other traders might reasonably want to employ otherwise than for dishonest purposes, in describing or advertising their goods !f so it should not be registered Protection %broad 1urrently there is an international agreement formed by two treaties, the -adrid %greement and the -adrid Protocol, both being referred to as the -adrid #ystem, with the present membership of about IB countries, :enya inclusive This makes it possible for one to apply for protection in some or all of those

countries by a single application #uch application is submitted through :enya !ndustrial Property !nstitute as a receiving office, for transmission to the !nternational 2ureau of the ;orld !ntellectual Property Organi7ation in $eneva, #wit7erland 1OPK/!$)T# /egistration of copyright is based on non*formality provision under the 2ern 1onvention of 5BBF for protection of literary and artistic works 1opyright protection is borne by simply e(pressing the original idea in a fi(ed form )owever, many countries provide for a national system of optional registration and deposit of works0 these systems facilitate, for e(ample, 4uestions involving disputes over ownership or creation, financing transactions, sales, assignments and transfers of rights The law relating to copyright !N :enya is the 1opyright %ct 1ap 5F9 This %ct makes a provision for copyright in literacy, musical and artistic works, cinematograph films, sound recordings and broadcasts #ection 6 of the %ct defines some important terms as follows" %rtistic work means any of the following" a Painting, drawings, etchings, lithographs, woodcuts, engravings and prints, b -aps, plans and diagrams, c ;orks of sculpture, d ;orks of architecture in the form of building or models, e Photographs not comprised in a cinematograph film and0 f ;orks of artistic craftsmanship etc Broadcast means a sound or television broadcast of any material (inematograph film means the first fi(ation on a film or any other medium of a se4uence of visual images or electronic impulses capable of being seen as a moving picture and of being the sub8ect of reproduction, and includes the recording of a sound track associated with the cinematograph films !iterary work means, irrespective of literary 4uality, any of the following, art works similar thereto" * a Novel, stories and poetical works, b Plays, stage directions, films scenarios and broadcasting scripts, c Te(tbooks, treaties, histories, biographies, essays and articles, but does not include law or 8udicial decision d .ncyclopaedias and dictionaries, e @etters, addresses and sermons, )#sical works means any musical work irrespective of musical 4uality, and includes works composed for musical accompaniment (opy means a reproduction written form, in the form of a recording or cinematograph film, or in any other material form, but an ob8ect shall not be taken to be a copy of an architectural work unless the ob8ect is a building or model 1opyright means copyright under this %ct Infringing copy means a copy whose manufacture constitutes an infringement of copyright, or in the case of a copy which is imported, would have constituted an infringement of copyright had the copy been manufactured in :enya #ection F of the %ct provides that the following works shall be eligible for copyright" a @iterary works, b -usical works, c %rtistic works, d 1inematograph films, e #ound recordings, f 2roadcast, g Programme +carrying signals 'nder section G&6) of the %ct the term of a copyright shall be calculated according t the following table Type o& Wor' Date o& e(p#rat#o o& "opyr#)*t

5 @iterary, musical or artistic work other than * 6H years after the end of the year in which the author photographs dies 6 1inematograph films and photographs * 6H years after the end of the year in which the work was first made lawfully accessible to the public F #ound recordings * 69 years after the end of the year in which the recording was made G 2roadcasts * 69 years after the end of the year in which the broadcast took place H Programme carrying signals * 69 years after the end of the year in which the signals were emitted to a satellite