Kenya Intellectual Property Law: Restrictive or Unfair Trade Practices

They are closely related to passing off.  When one enters into a contract, in software Microsoft has been accused of bundling products (bundling means for example buying sugar must go with bread) to buy one item  you are bundled with another item.  Whenever one buys Windows software, one gets Explorer,  Netscape existed and they had Nestcape Navigator for exploring the net , Microsoft was forcing people to use Explorer because it came with the Windows package which was unfair because in a way it was locking Netscape out, even where it is offered to free it is still bundling, taking unfair advantage of market dominance.

Cap 504 – The Restrictive Trade Practices Monopolies and Price Control Act – this Act does not sufficiently deal with intellectual property.  it does not sufficiently understand intellectual property technological issues, there is a technology and IP deficit.

The following instruments have tried to deal with the problems of unfair competition

1.            Paris Convention on the Protection of Industrial Property  1883

2.            There were negotiations in the 70s through 1980s for an international code of conduct on Restrictive Trade or Business practices (RBTs)  there were arguments that Trans-national Corporations like Microsoft, Nation Media Group were engaged in restrictive business practice or unfair competition.  For example price fixing. 

3.            In 1970 – 1985 there were concerted discussion for a draft international code of conduct on transfer of technology hereinafter called the Draft Tot Code.

Last aspect of Unfair Competition is advertising which is an arena for providing information to customers or consumers as well as developing and selling a brand.  This issue play out in the realm of comparative advertising, misleading advertising and unfair advertising.  These are problems in the realm of economic torts as well as intellectual property particularly Unfair Competition.  In comparative advertising one company advertises its product and compares it with the competition i.e. that it is cheaper, better quality, long-lasting in relation to the competition which mostly is identifiable competition. Compaq v Dell.  One company insisting they are cheaper than the competition.