Having been a Kenya advocate since 1969 and worn the traditional local kikoi long before that, I rejoice at the failure of The Kikoy Company UK Limited to register Kikoy in the UK for goods in class 25 (application number 2431257). According to my 1939-edition Swahili dictionary, kikoi means a "white loincloth with coloured border in cotton or silk". Since then white has ceased to be an essential colour and there are many patterns; the cloth rectangle has been tailored for many uses; and the garments have become known as kikoi far beyond east Africa. They are traded to tourists and in the international marketplace, by the applicant and others. Is it not axiomatic that the word is incapable of distinguishing the applicant's goods from those of others?
The application was deemed abandoned when the applicant failed to respond to a notice of opposition filed by Traidcraft Exchange, represented pro bono by the law firm Watson Burton. I am interested to note from the firm's website that the opposition may have been based on the ground that registration "would have been disastrous for the thousands of small businesses which depend on trade with the UK in this traditional cloth", rather than the argument that the word is generic. Client confidentiality prevents Watson Burton from commenting. I have been referred by one kind colleague to item 27.5 of the IPO manual and would be grateful for further enlightenment, particularly on the language aspect.
As to Kenya, there were reports in sundry media that the Kenya Industrial Property Institute was prepared to grant trade mark protection to the word Kikoi. However, correspondence with James Otieno-Odek, director general of KIPI, and with the chief trade marks examiner Sylvance Sange reassures me that the word is recognized to be unregistrable as a trade mark and that lack of novelty rules out patent protection. In fact the authorities, approaching the controversy from an opposite point of view, regard the name as being "protected", not as a monopoly but against monopolization, by those provisions of the two Acts. These issues are the subject of discussion in international circles.
Before the UK trade mark application was filed, the applicant was already the owner of Community trade mark registration numbers 002231691 and 002829992, which include the word Kikoy in classes 18, 24 and 25 and still subsist. It is unlikely that they can be used to restrain others from describing kikoi garments as such. Indeed it is improbable that the UK registration, had it been granted, could have been effective for that purpose.
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