REVIEW: THE LEGAL PROCESS OF REGISTERING A TRADEMARK

The Constitution of Kenya under Article 40(5) provides that the state shall support, promote and protect the intellectual property rights of the people of Kenya.

 

A trademark, is a recognizable sign, design or expression which identifies a particular product or service from the others.

 

Any individual or company can register a trademark in so far as they meet the necessary requirements.

 

Trademark registration and protection is governed by the Trademarks Act of Kenya (Cap 506). Trademarks are registered at the Kenya Industrial Property Institute (KIPI) and the registration lasts for an initial ten(10) years which can be renewed for a further ten(10) years using Form TM10 upon payment of renewal fees.

 

The procedure for registering a Trademark is as below:

 

1.0    Preliminary Search

 

Prior to registration of a Trademark one has to conduct a preliminary search to find out if the mark can be registered or not. This is a very important step for anyone who intends to register a trademark as it helps one know whether the mark is registrable or not and to avid trade mark infringement suits. The search is conducted using Form TM27.

 

2.0 Application for registration

After confirmation that the trademark can be registered through the preliminary search, the next step would be to lodge an application for registration which is done using Form TM2 and TM32. In the case of foreigners who require to appoint an agent to conduct the registration on their behalf, their application has to be accompanied by Form TM1. The applicant has to also make the necessary payments required for registration.

 

3.0 Examination by the registrar

The application is fully examined at this stage to determine whether the mark is registrable. Once this is determined an examination report is issued stating whether the mark has been approved for registration or not.

 

4.0 Advertisement

Once the mark is approved for registration, one should pay the required advertisement fee after which the mark will be advertised in the KIPI Journal for sixty(60) days to allow for any objections to be raised,if no objection is raised then the mark can be able to proceed for registration. However, where there is an objection, Form TM6 is usually filed and proceedings in respect of the objection commence.

 

5.0 Registration

If there are no objections raised, the mark is registered and the proprietor of the mark is then issued with a Trademark Certificate.

 

REVIEW: LEGAL PROCESS OF PURCHASING LAND

Any person willing to buy land in Kenya should follow the following steps below:

 

Parcel identification: The buyer in this case identifies the parcel of land which suits his/her needs, this being the acreage, location etc. at this point the buyer should take a further step to visit the physical location of the property to ascertain the boundaries, ensure that there are no occupants, to avoid instances of adverse possession.

Preliminary investigation of Title: The buyer should obtain copy of the Title to the property and conduct an official search which is a very important step in buying land in Kenya and should not be skipped. This usually involves lodging an official search at the lands registry depending on where the property is located, paying the requisite search fees which is usually Kshs. 520/=. The search results usually takes three(3) working days and they usually ascertain ownership and any encumbrances on the property. It is also prudent to conduct a search at the Ndungu Land Report to ensure that the parcel of Land is not listed as one of the illegally and irregularly allocated land. 

Preparation of the Sale Agreement: This is usually done by the Seller/Vendor's advocates. The Sale Agreement usually sets out the terms agreed between the parties. The buyer or if represented the buyer's advocates should ensure that they review the Agreement for Sale to ensure that the terms are favorable. The Sale Agreement usually contains the following terms i.e the description of the parties, purchase price, deposit, warranties, termination, completion, governing law etc. Once the parties have agreed on the terms, the same is engrossed and sent for execution by the purchaser then the vendor or their powers of attorney. Once executed nominal stamp duty is paid for the Agreement.

Obtaining the rates and rent clearance certificates where the same are applicable: Rent clearance property is usually obtained for leasehold properties only and rates clearance certificate is obtained for properties for properties in the municipalities.

 Preparation of the Transfer: This is usually done by the purchaser's advocates and reviewed by the vendor's advocates, and executed by both parties.

Obtaining the requisite consent to transfer: Depending on whether the property is agricultural or not,consent to transfer should be obtained. In the case of Agricultural land, the consent to transfer should be obtained from the relevant Land Control Board.

Valuation of the property and Payment of Stamp duty: Valuation of property in Kenya is usually done by a registered Government valuer. Once one lodges a valuation for Stamp duty application at the Ministry of Lands with the accompanying documents the valuer usually contacts the party and visits the site and values the property, a report is then compiled and the value is endorsed on the transfer and then assessment of stamp duty which is usually 4% of the value of the property located in the municipalities, for agricultural property it is 2% of the value of the property. Once payment is made the documents are lodged at the lands registry for stamping where the collector of Stamp duty is fully satisfied that payment has been made.

Registration formalities: Booking for registration of the transfer in favor of the purchaser. The Original Title, the transfer (in triplicate), land rent and rates clearance certificate(where applicable), consent to transfer, valuation for stamp duty form, the stamp duty declaration, assessment and pay-in-slip, PIN and IDs of the purchaser and vendor are lodged for registration.

Post registration search: This is a very important step after registration, to ensure that the transfer of the property in favor of the purchaser is ascertained.