By Perpetua Mwangi

Kenya’s economy today has been developed by Small and medium sized companies (SMEs). Such are fast becoming formidable players in their respective industries. In addition to SMEs, women and youth groups are similarly becoming avenues for revenue generation for a disadvantaged and vulnerable group of people in the society. Most of these groups are associations of people that have come together with an aim to address social economic challenges. Often they engage in activities inter alia, beadwork, jewelry making, basket weaving, and artwork. The end products obviously handmade are unique and demonstrate skilled and often artistic works. For example, the Merrueshi Women’s Cooperative, the Kawangware Amani Women’s group, the famous Jua Kali artisans, among many other community groups.
Despite the inventive effort, skill, quality and often aesthetic appeal of the products, or even innovative business methods, gaining access to retail stores, local, regional and international markets, distribution networks and making their products known among consumers remains an arduous task for these groups and SMEs. Given their small scale of production and limited budgets, they may find it difficult to develop a powerful marketing campaign that will enable them to position their products and create a reputation for their goods that will attract more consumers.

Such group initiatives and SMEs are to be nurtured, encouraged and supported through favourable conditions so as to enable them continue playing the key role of growing the country’s economy as well as improving the lives of the Kenyan people. Importantly, they ought to be encouraged to target regional and international markets in a bid to help address the imbalance of imports and exports. Such groups and SMEs are indeed at the frontline in helping the country realize its vision 2030 which aims to make Kenya an industrialized nation, a net exporter of quality goods and services and a citizenry living a high quality life.
Intellectual Property (IP) protection presents one of the myriads of ways such groups and SMEs can gain customer confidence and recognition not only in Kenya but outside its borders. These groups and SMEs can benefit from working collectively in taking advantage of a broader brand reputation just as larger companies thrive on well-known brands. The Trade Marks Act, CAP 506 of the Laws of Kenya provides for the protection and registration of collective and certification marks.

Section 40 Certification Trade Marks
(1) A mark adapted in relation to any goods to distinguish in the course of trade goods certified by any person in respect of origin, material, mode of manufacture, quality, accuracy or other characteristic from goods not so certified shall be registrable as a certification trade mark in Part A of the register in respect of those goods in the name, as proprietor thereof, of that person:
Provided that a mark shall not be so registrable in the name of a person who carries on a trade in goods of the kind certified.
(7) There shall be deposited at the office of the Registrar in respect of every trade mark registered under this section regulations for governing the use thereof, which shall include provisions as to the cases in which the proprietor is to certify goods and to authorize the use of the trade mark, and may contain any order provisions that the Registrar may require or permit to be inserted therein (including provisions conferring a right of appeal to the Registrar against any refusal of the proprietor to certify goods or to authorize the use of the trade mark in accordance with the regulations); and regulations so deposited shall be open to inspection in the same manner as the register.
Section 40A Collective Trade Marks
(1) A mark capable of distinguishing, in the course of trade, the goods or services of persons who are members of an association, from goods or services of persons who are not members of such association, shall on application in the prescribed manner, be registerable as a collective trade mark or service mark in respect of the goods or services in the name of such an association.
(2) An application for registration of a collective trade mark shall designate the mark as a collective trade mark and the application shall be accompanied by a copy of the rules governing the use of the mark.
(3) In subsection (2) “rules” means the rules made by a person under whose control the collective mark may be used.
(4) The registered owner of a collective trade mark shall notify the Registrar, in writing, of any changes made in respect of the rules governing the collective trade mark.
(5) Geographical names or other indications of geographical origin may be registered as collective trademarks or service marks.

The many groups currently in Kenya and SMEs may consider registering collective marks in order to market their products jointly. Such marks will enhance product recognition by creating an association and reputation in the eyes of consumers. Consumers will be drawn to goods from an association of people who are engaged not only in a good social economic cause but also as a source of quality goods and services.
Certification marks on the other hand may be registered by a person or established associations that have set standards for the production of goods. Presently, certification marks in Kenya are dominated by statutory bodies such as the Kenya Bureau of Standards (KEBS), as well as the recent certification mark by the Kenyan Government ‘Coffee Kenya’. Certification marks in other countries are owned not only by statutory bodies but also private associations that have set quality standards for the production of goods and the delivery of services. The famous Woolmark Certification mark is a well-known privately owned certification mark. When such marks are attached to products, they help certify that those goods comply with a pre-established set of standards. Associations of private SMEs in key industries can tap into this marketing strategy to enhance consumer confidence.
It is important to note that SMEs may make use of collective and certification marks together with their individually owned trademarks. This allows various groups and SMEs to differentiate their own products from those of their competitors, while at the same time benefiting from the confidence of the consumers in products or services offered under either the collective or certification mark. The label used as a collective or certification mark will be evidence of a brand image that the products from the groups and SMEs meet the specific standards required for the use of either the collective or certification mark. Significantly, this will also help alleviate the counterfeit menace in the country.
Collective and certification marks may therefore represent useful instruments for assisting in overcoming some hurdles often faced by small groups and SMEs engaged in business ventures in Kenya.