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Section 2 of Trade Marks Act CAP 506: Interpretation

    

(1) In this Act, except where the context otherwise requires—
"a convention country" means a country, other than Kenya, that is party to the Paris Convention;
"appointed day" means the 1st January, 1957;
"ARIPO" means the African Regional Industrial Property Organization;
"assignment" means assignment by act of the parties concerned;
"certification trade mark" means a mark registered or deemed to have been registered under section 40;
"court" means the High Court;
"Director" means the Managing Director of the Kenya Industrial Property Institute appointed under section 11(1) of the Industrial Property Act (Cap. 509);
"distinguishing guise", in relation to goods, means the shape or configuration of containers of the goods;
"Institute" means the Kenya Industrial Property Institute established by section 3 of the Industrial Property Act, (Cap. 509);
"International Classification of Goods and Services" as regards Registration of Marks, means the classification, in accordance with the Nice Agreement of the 15th June, 1957, as revised and amended from time to time, establishing an international classification of goods and services;
"International Classification of the Figurative Elements of Marks" means the classification established by the Vienna Agreement establishing an international classification of the Figurative Elements of Marks, of the 12th June, 1973, as revised and amended from time to time;
"Journal" means the Industrial Property Journal published by the Institute;
"licensee" means a person who is for the time being registered as such under section 31;
"limitations" means any limitations of the exclusive right to the use of a trade mark given by the registration of a person as proprietor thereof, including limitations of that right as to mode of use, as to use in relation to goods to be sold, or otherwise traded in, in any place within Kenya, or as to use in relation to goods to be exported to any market outside Kenya;
"mark" includes a distinguishing guise, slogan, device, brand, heading, label, ticket, name, signature, word, letter or numeral or any combination thereof whether rendered in two dimensional or three-dimensional form;
"permitted use" has the meaning assigned to it by subsection (1) of section 31;
"prescribed" means, in relation to proceedings before the court, prescribed by rules of court, and, in other cases, prescribed by this Act or the rules;
"profession" means a calling or occupation, not being a trade or handicraft, carried on by an individual person being a member of a lawfully established body of persons each of whom is qualified and licensed by that body as having acquired and holding the specialized knowledge necessary to enable that person to practise in the particular department of learning or science with which such body is concerned;
"register" means the register of trade marks kept under this Act;
"registered trade mark" means a trade mark that is actually on the register;
"Registrar" means the Registrar of Trade Marks appointed under section 3;
"services" are services within the meaning of this Act where they are normally provided for remuneration, in so far as they are not governed by the provisions of any written law relating to freedom of movement for goods, capital and persons and in particular include activities of an industrial or commercial character or of craftsmen and of the professions;
"surname" includes a name by which a person is customarily known by members of the community to which he belongs;
"the Paris Convention" means the Paris Convention for the Protection of Industrial Property, of the 20th March, 1883, as last revised;
"the rules" means rules made by the Cabinet Secretary under section 39 or section 41;
"the WTO Agreement" means the agreement establishing the World Trade Organization, signed at Marrakesh, Morocco, on the 15th April, 1994;
"trade" means any type of profession or other business occupation in which a mark may be used in the manner prescribed by this Act;
"trade mark" means, (except in relation to a certification trade mark) a mark used or proposed to be used—
(a) in relation to goods for the purpose of indicating a connection in the course of trade between the goods and some person having the right either as proprietor or as registered user to use the mark, whether with or without any indication of the identity of that person or distinguishing goods in relation to which the mark is used or proposed to be used from the same kind of goods connected in the course of trade with any person;
(b) in relation to services for the purpose of indicating that a particular person is connected, in the course of business, with the provision of those services, whether with or without any indication of the identity of that person or distinguishing services in relation to which the mark is used or proposed to be used from the same kind of services connected in the course of business with any other person;
"transmission" means transmission by operation of law, devolution on the personal representative of a deceased person and any other mode of transfer not being assignment; "tribunal" means the court or, subject to the provisions of section 53, the Registrar.
(2) Any reference in this Act to the use of a mark shall be construed—
(a) as a reference to the use of a printed or other visual representation of the mark and, in the case of a distinguishing guise, to the use of such distinguishing guise;
(b) if the mark is capable of being audibly reproduced, as including a reference to the use of an audible reproduction of the mark;
(c) in relation to goods, as a reference to the use thereof upon or in physical or other relation to goods; and
(d) in relation to services, as a reference to the use thereof in relation to the performance of such services.

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