Industrial Designs
Safepak Limited v Fineline Industries Limited (Civil Appeal 774 of 2016) [2018] KEHC 10128 (KLR) (30 July 2018) (Judgment)
Facts
Safepak owned registered Industrial Design No. 646, certified 13 December 2011. Fineline applied to the Industrial Property Tribunal in December 2014, over two years after publication, for an extension of time and revocation; the Tribunal granted the extension on 9 December 2016. Safepak appealed to the High Court.
Issues
Whether the Tribunal had jurisdiction or power to extend the nine-month statutory deadline for revocation actions, and whether subsidiary legislation can override the Act.
Rule
Industrial Property Act s.103(1)-(2) (nine-month limit for revocation applications); Industrial Property Tribunal Rules 2002 r.33; Interpretation and General Provisions Act ss.31(b), 59.
Analysis
The Court held s.103(2)'s nine-month deadline is mandatory and cannot be extended via r.33 or s.59 of the Interpretation Act, since subsidiary legislation cannot contradict express statutory provisions; the Tribunal erred in mixing the two provisions to manufacture an extension power it did not have.
Conclusion
The Tribunal's 9 December 2016 ruling was set aside; Fineline's extension and revocation applications were struck out; costs to Safepak.
Judgement available at kenyalaw.org.