Trending on twitter, #Someonetellradioafrica is the result of the fallout between the media house, Radio Africa Group (RAG) and Kilimani mums admin. Radio Africa claimed to be the owners of the famous Kilimani mums Nairobi and Kilimani Mums Marketplace Facebook pages, as well as the name ‘Kilimani Mums’.
As such it has directed the Facebook administrator of Kilimani Mums Uncensored and Kilimani Mums and Dads Uncensored to take down all their Social Media accounts including those on Facebook, Instagram, and YouTube, claiming that they are an infringement of their registered trademark.
Ms. Lyne Nzisa, the admin of the Facebook group, isn’t planning on going down without a fight, as she insists on tackling this issue with the media house.
This, however, begs the question as to why Radio Africa decided to bring up these claims now. Evidence shows that before to the accusations, the media company had had dealings with the Facebook group where they had not raised any concerns over their use of the name, ‘Kilimani Mums.’
The change of heart could’ve been brought on by the introduction of the new show by the accused dubbed The Kilimani Show. Despite all the ruckus, the Kilimani Mums Facebook group administrator may be able to qualify as aggrieved persons and here’s why:
Indeed, RAG had filed an application to register trademark no. KE/T/2014/85958 “KILIMANI MUMS” back in 2014. The application was filed in international classes 35 (Advertising; business management) and 41 (Education; providing of training) of the International Classification of Goods and Services for Purposes of Registration of Marks in respect of various goods and services. It was then entered in the Register of Trade Marks and a Certificate of Registration was issued to RAG as the Proprietor by 2015.
Fast forward to the present and the possible proceedings in relation to the trademark in question would have to delve into section 35 of the Trademark Act which states. “Any person aggrieved….by any entry made in the register without sufficient cause, or by any entry wrongly remaining on the register…may apply in the prescribed manner to the court or, at the option of the applicant and subject to the provisions of section 53, to the Registrar, and the court or the Registrar may make such order for making, expunging or varying the entry as the court or the Registrar may think fit.”
To have the upper hand, the Facebook administrator will have to prove two things:
1. RAG had no valid and legal claim to the mark “KILIMANI MUMS” (WORDS) before they applied to register the mark.
The claim for proprietorship of a trademark should be a justifiable one and made in good faith. The holder of a trademark must also be capable of showing evidence for such ownership. The owner of the trademark must also show that the name in question is a staple that caters for the owner’s product or service. If you search online for ‘Kilimani Mums’ then the alleged proprietary right of RAG to the name in question may not be sufficiently backed up as required by law due to its overuse.
Mrs. Nzisa, Facebook admin of the Kilimani mums uncensored group, made a similar statement, “Common user words such as ‘Kilimani’ and ‘Mums’ are not novel enough for anyone to claim exclusivity to their use”.
2. The Facebook administrator is the aggrieved person in accordance with the provisions of section 35 of the Trade Marks Act.
‘Aggrieved persons’ are people interested in having a name removed from the Register of Trade Marks due to the substantial damage if the mark remained. Basically, ‘aggrieved persons’ includes any person who may have his/her legal rights limited due to the fact that a mark that shouldn’t be in the Register of Trade Mark remains there.
While the two points work in favor of the accused Facebook administrators, we’ll simply have to wait and see what the court decides on the matter.
It appears that Radio Africa were only given a trademark for the Kilimani Mums logo. The registration has an exemption stating that it doesn’t give Radio Africa the exclusive right to use the words KILIMANI and MUMS. This doesn’t bode well for Radio Africa as the clearly don’t own the trademark to the name and so can’t go after pages with a simlar name.
— Fovoured (@BLizzie_) March 31, 2017