The Kente debate

A leading lawyer in Intellectual Property law says even though protecting Ghana's intellectual property rights in Kente will not be a simple task, it can be done.

Mrs. Susan-Barbara Adjorkor Kumapley, a Partner at Bentsi-Enchill, Letsa & Ankomah -- a law firm in Accra -- in an oped to the B&FT said a patent solution may not be the right or possible solution to protect the nation's intellectual property rights in kente.

“For instance, do we want to protect the way Kente is made or the apparatus used to weave Kente? Do we want to protect the word “Kente” so that it is used only in relation to the fabric we all know as “Kente”? Do we want to protect the various Kente designs or do we want to make the word “Kente” synonymous with Ghana?”

Her comments come at a time when there have been calls for provisions to protect Ghana's property rights in kente through a patent.

Mrs. Kumapley defined a patent as a title granted to an invention. “An invention is an idea which gives the solution to a specific problem in the field of technology.

It may relate to a product or a process and the right to patent belongs to the creator or inventor and may be assigned, transferred or devolved by succession.

“Looking at these stipulations of our Ghana law on patents, the Kente fabric cannot be the subject a patent. How about the process of making Kente or the apparatus that is used to make Kente? One can make the argument that the Kente weaving machine is an invention which may be protected by patent.

“However, one of the conditions for the grant of patent is that the invention must be new; that is, it must not be in the public domain.

The Kente weaving machine is certainly not new and was definitely around before I was born; this could sound the death-knell for an attempt to obtain patent rights for the Kente weaving machine.

“There is also the issue of who has the right to patent the Kente weaving machine. A logical answer would be the Government of Ghana. An equally logical response is that the right to patent belongs to the creator or inventor, so how does the Government of Ghana acquire the right to patent Kente?”

Mrs. Kumapley said: “The suggestion of protecting our intellectual property rights in Kente is a laudable one.

A solution may lie in trademarks or geographical indications. I am encouraged by the fact that one of Ghana's intellectual property laws specifically mentions Kente. We have to now move from rhetoric to action. Other countries are protecting their intellectual property rights, and so could Ghana.”

She said protecting the rights of Kente requires a thorough understanding of the various categories of intellectual property rights and supporting national laws as well as international treaties and conventions.

“A key task is to identify the possible categories of intellectual property rights under which we could protect our rights in Kente. This requires a determination of the rights we want to protect.”

She said intellectual property rights include patents, trade or service marks, industrial designs, and geographical indications.

On the way forward, she explained: “Ghana law on geographical indications states that goods include a natural or agricultural product or a product of handicraft or industry and Kente. Our law has specifically placed Kente in the category of geographical indications.

“The next step in protecting our intellectual property rights in Kente is to identify the various markets or countries in which we seek to protect our intellectual property rights in Kente. We must then fulfill the requirements (such as registration) under the various national laws and applicable international treaties and conventions to get the requisite legal protection.

“The further and ongoing step is that of monitoring and enforcement. We must also put in place mechanisms to monitor the various markets in which we have sought protection to ensure our intellectual property rights in Kente are not infringed, and where infringement occur resort to the remedies provided under the various national laws and applicable international treaties and conventions to enforce our rights.”

Ghana would not be the first country taking steps to protect intellectual property rights. Ethiopia through its Intellectual Property Office has protected intellectual property rights in its Harrar, Sidamo and Yirgacheffe coffees in key markets using a trademark solution.

The Republic of Columbia, working with the National Federation of Coffee Growers of Columbia (which represents the interest of small coffee growers in Columbia), used a certification mark to protect the reputation of Colombia's coffee beans in key markets.

The National Federation of Coffee Growers of Columbia subsequently adopted a geographical indication solution and has successfully registered 'Café de Colombia' as a protected geographical indication under the European Union system.