Geographical Indication (GI) options for Ethiopian Coffee and Ghanaian Cocoa

Innovation & Intellectual Property
4. Findings: the Kenyan legal and policy
environment
At local, regional and international levels, two forms of legal protection of TK are
prominent. There is defensive protection, intended to prevent others from asserting
or acquiring IP rights over TK subject matter. Such protection may include
making information available to patent and trademark examiners – so that formal
IP rights are not granted for TK that is in the public domain (as far as patents are
concerned) or that is a protectable element of identification of indigenous peoples
and traditional communities (as far as trademarks are concerned).
One type of defensive TK protection is databases or other inventories of
TK available to patent and trademark examiners (WIPO, 2003a, para. 12). One
such model is the aforementioned TKDL in India (CSIR, n.d.). There is also
positive protection of TK, which is intended to give TK holders the right to take
action or seek remedies against certain forms of misuse of their TK. Positive
protection of TK includes the use of existing IP systems, adaptations and sui
generis elements of existing IP regimes, and wholly sui generis protection
(WIPO, 2003b).
International and regional legal instruments
Kenya is a party to several international and African regional treaties, conventions
and protocols that directly and indirectly protect various forms of IP rights,
including patents, copyright and related rights, trademarks, industrial designs,
utility models, geographical indications, trade secrets, plant breeders’ rights and
TK. This section examines some of the instruments that have a bearing on the
protection of TK – and potentially on the formalisation of a TK commons – in
Kenya.
Convention on Biological Diversity (CBD) (1992)
Article 1 of the CBD aptly captures the central role of the CBD in the protection
of TK and genetic resources vis-à-vis a TK commons for development purposes.
Article 8(j) of the CBD provides the legal framework that deals with the preservation
and process of adding value to TK. Article 17 seeks to promote exchange
of information, including indigenous knowledge and TK, from all publicly available
sources relevant to the conservation and sustainable use of biological diversity,
taking into account the special needs of developing countries. This provision
has the potential to promote knowledge-sharing for research and development.
The language of the CBD articles in relation to TK has the potential to facilitate
the core elements of a TK commons: non-appropriation, recognition of existing
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