Rev. 2009]
Trade Marks
CAP. 506
17
of the same goods or description of goods by more than one proprietor
subject to such conditions and limitations, if any, as the court or the
Registrar may think it right to impose.
(3) Where separate applications are made by different persons to
be registered as proprietors respectively of trade marks that are identical
or nearly resemble each other, in respect of the same goods or description
of goods or in respect of the same services or description of services, the
Registrar may refuse to register any of them until their rights have been
determined by the court, or have been settled by agreement in a manner
approved by him or on an appeal by the court, as the case may be.
15A. (1) References in this Act to a trade mark which is entitled Protection of well
known trade marks.
to protection under the Paris Convention or the WTO Agreement as a
4 of 2002.
well known trade mark, are to a mark which is well known in Kenya
as being the mark of a person who(a) is a national of a convention country; or
(b) is domiciled in, or has a real and effective industrial or
commercial establishment in, a convention country, whether
or not that person carries on business or has any good will
in Kenya.
(2) Subject to the provisions of section 38B, the proprietor of a
trade mark which is entitled to protection under the Paris Convention or
the WTO Agreement as a well known trade mark, is entitled to restrain
by injunction, the use in Kenya of a trade mark which is identical or
the essential part of which is identical or similar to his, in relation to
identical or similar goods or services, where the use is likely to cause
confusion among the users of the goods or services.
(3) Nothing in subsection (2) shall affect the continuation of any
bona fide use of a trade mark begun before the commencement of this
section.
(4) A trade mark shall not be registered if that trade mark, or an
essential part thereof, is likely to impair, interfere with or take unfair
advantage of the distinctive character of the well-known trade mark.
Registration in Part
16. (1) In all legal proceedings relating to a trade mark registered
A to be conclusive as
in Part A of the register (including applications under section 35) the to validity after seven
original registration in Part A of the register of the trade mark shall, years.
after the expiration of seven years from the date of that registration, be
taken to be valid in all respects, unless(a) that registration was obtained by fraud; or