IP Case Law library

Facts

The plaintiff, Alternative Media Group, filed a suit on 21st May 2004 where it claimed to be the author of an original artistic work, an AIDS campaign using the corporate colours of Safaricom Limited, Kencell Limited, and Telkom Kenya Ltd, intended for use on scratch cards. The plaintiff alleged that the defendant, Safaricom Limited, infringed on its copyright by reproducing or adapting the artistic work on their scratch cards without a licence. The plaintiff claimed economic loss, infringement of moral rights, and loss of attribution due to the defendant's actions, and sought an injunction against the defendant from further infringing on its copyright, pending the final determination of the lawsuit.

Issues

1. Whether Safaricom Limited infringed on Alternative Media Limited's copyright by reproducing or adapting their artistic work.
2. Whether the plaintiff is entitled to an injunction restraining the defendant from further infringing their copyright.

Rule

Section 6 of the Copyright Act of 2001 - copies of forms made to their own design constitute artistic work, and the production of the copies involves knowledge, labour, and skill which gives them an original character.

Kalamazoo Ltd v Systems (1973) EA 242; Ex-systems Africa Ltd v Kalamazoo Ltd and Another (1974) EA 21; Sapra Studio v Tip-Top Clothing Co. (1971) EA 489 - establish the principles regarding the grant of injunctions in copyright infringement cases, including the probability of success, irreparable damage, and a balance of convenience.

Aikman v Muchoki (1984) KLR 353 - conditions laid down for the grant of an interlocutory injunction: probability of success; irreparable harm which would not be adequately compensated for in damages; and balance of convenience.

Halsbury's Laws of England - principles for granting interlocutory injunctions: immediate protection of rights from potential infringement pending trial; preservation of rights from further interference until the matter is fully resolved in court; seriousness of the issue to be tried, such that the court should not attempt to resolve disputes solely on affidavit evidence or complex legal questions at this stage; adequacy of damages, such that if damages would be an adequate remedy for the plaintiff and the defendant is financially capable of paying them, an interlocutory injunction shouldn't be granted; and, where damages would not adequately compensate either party, an assessment of whether granting or withholding an injunction would cause greater harm.

Analysis

The court examined the similarities between the plaintiff's artistic works and the defendant's scratch cards, finding remarkable resemblance in expressions, layout, and design. Despite arguments from the defendant that the plaintiff's work does not fit the legal definition of artistic work, the court found that the plaintiff had established a prima facie case with a probability of success, especially regarding the Kshs. 250/= denomination scratch cards.

The court considered whether the plaintiff would suffer irreparable damage and concluded that while damages could potentially compensate the plaintiff, granting an injunction would cause significant harm to Safaricom Limited, a major telecommunications provider in the country, and to the public interest. The balance of convenience therefore favoured Safaricom Limited due to the potential adverse effects on its operations and the broader telecommunications sector.

Conclusion

The plaintiff's application for an injunction was dismissed. Costs for the application were awarded to the plaintiff, considering partial success in the matter.

Judgement available here.