The Kenyan economy is largely composed of small and medium-sized businesses (SMEs). These days, intellectual property rights are a crucial consideration for SMEs involved in the production of many kinds of goods and services. Understanding intellectual property (IP) may boost SMEs’ competitiveness and help them control risks associated with IP.
- IP Assignment/Transfer Agreement
An IP Assignment is the transfer of ownership of Intellectual property rights from one party to the other. The person transferring the ownership (assignor), ceases to be the rightsholder and the person to whom the ownership is being transferred (assignee), becomes the owner. This needs to be in written form hence the need to sign an IP Assignment Agreement. This agreement is used to transfer ownership of a creative work/invention created for a company/organization by an employee or consultant, to the company/organization. This is usually completed by having an employee or consultant sign an agreement assigning all the IP created during the course of their services to the company/organization.
- Licensing Agreement
A license is a permission to use or do something. In IP, licenses are used to grant people permission to use Intellectual Property rights (copyright, patent, industrial design, trademarks, trade secrets, geographical indications etc.) for a fee. One can license all or part of his/her IP rights. It is important to note that a license is not a transfer of ownership of the IP rights but mere permission to use the IP. It is therefore important to enter into an agreement, which is what is referred to as a licensing agreement.
- Non-Disclosure Agreement
This Agreement is used when confidential information needs to be shared between parties. It defines limits to the use of confidential information and protects confidential information such as formulas for producing products, the technical composition of products, manufacturing methods, computer codes, list of suppliers and clients, sales methods, distribution methods, and price lists, among many others. One is not allowed to disclose such confidential information to anyone else the moment they sign this Agreement. This Agreement is useful, especially when interracting with third parties such as employees, partners, investors or contractors.
- Franchising Agreement
This is an Agreement between a franchisor and a franchisee. It is used when a company/business (the franchisor) licenses its know-how, intellectual property, business name, brand, procedures and the rights to sell its branded products or offer its services to another company/business/individual (the franchisee). In return, the franchisee pays royalties to the franchisor as agreed by both parties. A franchising agreement lays out the rights and obligations of both parties and ensures both parties are protected. Examples of franchises include KFC, Miniso, Subway, Domino’s pizza, and Starbucks among many others.
- Work for Hire Agreement
Work for hire is work done by an independent contractor for another individual/SME. For example, if a company hires a software developer to create an app for them, that will be a work for hire. Before one starts any project with an independent contractor, it is important to sign a work-for-hire agreement. Intellectual property is created in such projects, the Agreement should specify who owns such Intellectual Property rights to avoid future disputes.
- Joint Venture Agreement
A joint venture agreement is an agreement of mutual benefit between two or more parties, could be individuals or SMEs, to achieve a common goal that either party would not have been able to on their own. The parties pool together their expertise and resources i.e., products, services, assets or finances, and work together on a specific project. The reasons for entering into a joint venture agreement could be mainly for business expansion, development of new products, moving into new markets or conducting research. By having a written agreement reflecting all these, parties avoid unnecessary disputes that may lead to litigation and the uncertainty brought by not signing a agreement.
- Technology Transfer Agreement
By means of this agreement, the owner of the intellectual property grants permission to another person or SME to utilize the rights to the technology that they have developed in exchange for a considerable amount that has been mutually agreed upon. This kind of agreement is typically made by people or organizations who want to transfer technology to another party for a particular use. These agreements will outline the license’s characteristics as well as how long it may be used.
- Research and Development Agreement
Such agreements are made between an SME and any person or group for the purpose of doing research and development for products, services, or ideas. They clarify the roles and relationships among the project partners, including any contributions made by the parties, and clearly identify the project itself. They also include any essential background information pertaining to the project. Non-disclosure and intellectual property use clauses may also be included in this type of agreement.
It is important for SMEs to understand and protect their intellectual property by using these agreements to safeguard their innovations and brand.