Utility Model
Zaidat Limited v Fenesi Management Limited & another (IPT Case 86, 88, 89, 90, 91, 92 & 93 of 2020, Consolidated) [2022] KEIPT 861 (KLR) (31 August 2022) (Judgment)
Facts
Zaidat Ltd, as assignee of seven registered utility models covering apartment fixtures such as kitchen, cabinet and door-frame systems, filed between 2013 and 2016, sued the developer and management company of Fenesi Gardens Serviced Apartments for allegedly infringing fixtures fitted in the building, seeking damages of over Ksh 11 million per model plus injunctions.
Issues
Whether the management company was properly sued; whether the respondents infringed the seven utility models via fixtures at Fenesi Gardens; and entitlement to the reliefs sought.
Rule
Industrial Property Act 2001, ss.54(1) (registered owner's exclusive rights), 56(1) (prior-user defence, applied to utility models via s.81(1)), 82, 105, 106.
Analysis
The Tribunal found the management company was not a proper party but proceeded on the merits anyway. Evidence showed the developer had sourced the disputed fixtures from a Chinese supplier and begun installing them between 2012 and 2015, years before Zaidat's predecessor even filed for registration, making the developer a prior user under s.56(1), immune from infringement claims. The requester's expert evidence, uncorroborated photo comparisons by the non-independent original owner of the utility models, was found to have no evidentiary value, and no proof was given that the utility models were novel versus common trade fixtures.
Conclusion
All seven consolidated infringement claims dismissed with costs to the respondents.
Judgement available at kenyalaw.org.