When Azziad Naisenya debuted her moves in the famous #utawezanachallenge, her life changed. People shared her video widely, and this prompted everyone to install TikTok, including me. Upon scrolling through the app, I discovered that it has some highly creative people with a large following. Equally, the same could be said of other Social media applications.
What is clear is that social media has created a raft of individuals with a large following commonly known as influencers. As a result, it has changed the fortune of many people case in point Azziad Naisenya, Jaymo Ule Msee, Kylie Jenner, among others. Social media has created famous brands out of the influencers. Given the branding, in today’s post, we will evaluate how digital creatives can leverage the benefits of trademark law to protect their brands and derive maximum benefit.
But first, let us define a trademark.
What is a trademark?
A trademark is a name or symbol on a product that shows a company made it, and those other companies cannot use it without permission. In simple terms, it is a badge of trade used to distinguish between the goods of one proprietor with another. A trademark can be a wordmark, a device such as a shape, or a combination of both. In Kenya, the Trademarks Act governs trademarks.
A trademark is a badge of trade used to distinguish between the goods of one proprietor with another.Elvis
A trademark should be distinctive such that it can distinguish between the goods of one proprietor with another. A customer should be able to compare your products and your competitors. Examples of famous trademarks include Coca cola®, Microsoft®, among others.
How do you file for a trademark?
Kenya Industrial Property Institute (KIPI) deals with trademark applications. The process involves:
Trademark search. In this instance, one makes an application to KIPI. KIPI then does a trademark search to assess if there is a similar/existing mark. Should there be, it is advisable not to proceed with registration. As such, during the search, one should have several options should one fail. Notably, upon getting a green light, one should proceed with the application process as someone can easily take up your name if you do not apply timely.
Application: it involves filing a form known as a TM2. One provides the mark, the class of goods that the brand relates, and payment of the requisite fees.
Examination: Here, the KIPI officer examines your application and issues an examination report. The report states if KIPI has accepted your mark and requires you to pay advertisement fees. If KIPI rejects it, it provides its reasons, and one can either challenge this or remedy the application.
Advertisement: KIPI advertises your mark in its journal. This publication allows anyone with an objection to file an opposition to your trademark. If it is unopposed, KIPI proceeds to issue a trademark certificate. If someone files an opposition, KIPI does not register your mark until it is heard and determined.
Issuance of a trademark certificate. KIPI issues it on the absence of opposition proceedings and upon the payment of requisite fees. Upon registration, the term of protection is ten years and is renewable indefinitely.
Typically, the process takes around eight months to two years, and each step involves the payment of a prescribed fee. As evident above, the process is long, and one might question its necessity. As such, we will answer the question of the essence of a trademark.
How can a trademark assist you as a creative?
A trademark confers upon the registered proprietor numerous benefits which include:
Right to exclude others: As a trademark owner, you can exclude others from using your mark without using your permission. This right becomes beneficial as the brand grows. Some unscrupulous individuals might decide to take advantage of your brand by producing alterations that may deceive your customers. With a trademark certificate, you can easily exclude them from using your mark.
The right to license your mark: with a trademark, one can license others to use the mark subject to compensation. Licensing generates revenue.
Securitization: with a famous brand, one can visit a bank, apply for a loan, and offer their trademark (through the certificate) as security. The creative can utilize their loan to obtain collateral. Click here to read more about this.
Owning a trademark certificate is like owning a title to land.Elvis
In essence, a trademark certificate is like a certificate of title to land (title deed) but a title to your brand. With a title deed, you enjoy numerous benefits such as the right to exclude others, the right to obtain loans in banks, among others. The same benefits accrue when you own a trademark certificate.
Who has done it?
The benefits of IP protection are limitless. The creatives who have protected their brands through trademark law have derived unimaginable benefits. Examples of famous creative’s brands include KENDALL AND KYLIE, owned by Kendall Jenner, Inc. and Kylie Jenner, Inc; Supercarblondie, owned by Supercarblondie. Alexandra Mary Hirsch is associated with the brand Supercarblondie.
We also have HUDABEAUTY, owned by Huda Beauty Limited. This brand is associated with Huddah Monroe. Interestingly, some sources indicate that Kylie Jenner has over 125 trademarks and the Kardashian family has over 716 trademarks. These brands are worth millions of dollars, and the owners have derived enormous benefits.
In conclusion, as a creative, trademark law will come in handy as it will help you gain monetary benefit and will confer upon you the right to exclude others from using your mark without your authority.