Patents
Apex Creative Ltd & another v Kartasi Industries Ltd [2011] KEHC 720 (KLR)
Facts
The plaintiffs claimed to have invented an advertising concept using exercise-book covers to raise HIV/AIDS and environmental awareness, filed as patent applications KE/P/2009/000938 and AP/P/2010/005215 (not yet granted). They sought an injunction against Kartasi for allegedly using similar cover designs.
Issues
Whether the High Court has jurisdiction over patent disputes; whether a mere patent applicant, as opposed to a granted patentee, has enforceable proprietary rights; and whether the injunction test in Giella v Cassman Brown was met.
Rule
Industrial Property Act No. 3 of 2001; Constitution of Kenya 2010, s.165 (High Court jurisdiction); the Giella v Cassman Brown injunction principles.
Analysis
The court found that although the High Court has constitutional jurisdiction, the Industrial Property Tribunal is the more appropriate specialist forum. Critically, a pending patent application confers no enforceable right against infringement — only a granted patent does.
Conclusion
Application for injunction dismissed with costs; interim orders discharged; the parties were directed to the Industrial Property Tribunal.
Judgement available at kenyalaw.org.