Practical Tips On How To Spot Trademark Infringement

Trademark infringement is not just a legal technicality, it is a real-world threat to business integrity, consumer trust and the economic value of your brand. Under the Trademarks Act (Cap 506), a trademark violation occurs when a person, without authorization, uses a trademark that is identical or confusingly similar to a registered trademark, in a way that is likely to mislead the public. While some violations are blatant, others require a trained eye and a proactive approach to identify.

This article outlines the key trademark infringement elements to look out for and what to do when you suspect your trademark rights have been violated under the trademark laws in Kenya.

1. Similar Names or Logos

A classic example of trademark infringement is when a competitor adopts a name, logo or slogan that is confusingly similar to yours particularly in the same industry. Suppose your brand is Telle Naturals and a rival launches Telle Nature. The phonetic and visual similarities can easily mislead consumers, forming a textbook case of the trademark infringement elements as defined under the Trademarks Act (Cap.506).

Businesses should keep a vigilant eye out for such mimicry, which undermines not just the brand but also consumer trust. The best brand protection strategies begin with awareness and quick detection.

2. Copycat Domains and Websites

Impersonation in the digital space is increasingly common. Similar domain names and clone websites may constitute trademark infringement, especially when they lead to diversion of website traffic, misrepresentation/fraud or dilution of brand value.

Using tools such as WHOIS to monitor domain registrations is an effective way to enhance your trademark protection efforts.

3. Geographic and Cross-Border Use

Even if an infringing business operates in a different region or country, it may still affect your business in Kenya, especially in the age of e-commerce. Although trademarks are territorial in nature, foreign use may still qualify as infringement if it results in consumer confusion locally. For robust brand protection strategies, consider registering your trademark in jurisdictions where you operate or plan to expand.

4. Market Presence and Customer Confusion

One of the most reliable ways to detect a potential trademark violation is through customer feedback. Questions like “Did you change your branding?” or “Is this your product?” can indicate that another entity is causing confusion in the market. These incidents point directly to the trademark infringement elements that cause consumer confusion.

Steps to Safeguard Your Trademark in Kenya

1. Proactive Brand Monitoring

Businesses must adopt digital tools and internal policies to monitor their brands. Further, businesses may set up Google Alerts and regularly search their trademark across search engines, social media and marketplaces to spot any infringement. Monitoring is the cornerstone of both trademark protection and effective brand protection.

2. Keep a Record

Should you suspect a trademark infringement, compile a comprehensive file of supporting evidence. This may include screenshots, social media posts, packaging

comparisons and customer communications. This documentation becomes vital when issuing a trademark infringement cease and desist letter or taking enforcement action.

3. Check Official Databases

It is advisable to check local and international databases, such as the Kenya Industrial Property Institute (KIPI) for trademark registration in Kenya and the WIPO Global Brand Database for international trademarks. This helps in determining whether the infringing party has attempted to formalize the use of the disputed trademark.

4. Seek Legal Guidance

Consult your intellectual property counsel as he/she can assist in assessing the situation and recommending appropriate remedies, including filing a trademark infringement cease and desist letter, opposing a conflicting application and initiating litigation under the Trademarks Act (Cap 506),

At times, suspected infringement may overlap with copyright infringement cases in Kenya, especially where logos, packaging or product designs are copied. In such cases, addressing copyright infringement in Kenya becomes part of the broader enforcement strategy.

The Importance of Trademark Registration in Kenya

Securing trademark registration in Kenya through KIPI provides not just exclusive rights, but also legal leverage in case of infringement disputes. A registered trademark offers presumption of ownership and validity, both crucial when issuing a trademark infringement demand letter or initiating legal proceedings.

Without registration, proving trademark infringement can be more challenging, particularly when seeking remedies under the Trademarks Act (Cap 506). Thus, registration is a fundamental step in any comprehensive trademark protection strategy.

Conclusion

In today’s increasingly competitive and digitalized marketplace, the risk of trademark violation is higher than ever. Whether through imitation branding, deceptive domains or unauthorized cross-border use, the consequences can be significant. Proactive monitoring, early detection and clear enforcement policies are the foundation of sound brand protection strategies. When properly enforced, the Trademarks Act (Cap 506) offers robust mechanisms for defending your brand.

At CM Advocates LLP, we have a dynamic team of Intellectual Property Lawyers dedicated to helping secure all forms of Intellectual Property including trademarks, patents, copyrights, industrial designs and utility models. Our services also extend to the recordation of intellectual property rights with the Anti-Counterfeit Authority as well as monitoring and enforcement of intellectual property rights. If you would like to consult on this article or any other related matter, you may contact the contributor on the email below or the commercial team through commercial@cmadvocates.com.

Contributor

Mercy Chore, Associate mchore@cmadvocates.com