[2005] KEHC 3175 (KLR)

[2005] KEHC 3175 (KLR)

The court found that the Plaintiff owned copyright in the artistic work comprising the overall presentation of the AIDS awareness scratch-card design, including the photograph and arrangement, as it was original and involved skill and labour. The Defendant had access to the Plaintiff's work and, although its designer did not directly copy, the Defendant's instructions to its designers likely led to adaptation of the Plaintiff's copyright work. Innocent infringement is not a defence. However, the Plaintiff failed to prove actual damages or entitlement to profits, as its claims were speculative and unsupported by evidence of actual loss or causal link between the infringement and...

Citation
[2005] KEHC 3175 (KLR)
Parties
Plaintiff: Alternative Media Limited; Defendant: Safaricom Limited
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
4 October 2005
Case Number
Civil Case 263 of 2004
Procedural Posture
Civil Case / Judgment
Outcome
Plaintiff's claim for copyright infringement succeeds in part; injunction and nominal damages awarded.
Legal Topics
Copyright Infringement, Artistic Works, Damages Assessment, Injunctive Relief
Source Language
English
Intellectual Property Commercial and Corporate Copyright Infringement Artistic Works Damages Assessment Injunctive Relief

Case Brief

Summary, issues, holding and outcome

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Parties

Alternative Media Limited

Plaintiff

Safaricom Limited

Defendant

Procedural Posture

Civil Case / Judgment

Legal Issues

  1. 1 Does the Plaintiff have a copyright over the artistic work?
  2. 2 If so, have the Defendants infringed the said copyright?
  3. 3 If so, what is the measure of damages?

Ratio Decidendi

The court found that the Plaintiff owned copyright in the artistic work comprising the overall presentation of the AIDS awareness scratch-card design, including the photograph and arrangement, as it was original and involved skill and labour. The Defendant had access to the Plaintiff's work and, although its designer did not directly copy, the Defendant's instructions to its designers likely led to adaptation of the Plaintiff's copyright work. Innocent infringement is not a defence. However, the Plaintiff failed to prove actual damages or entitlement to profits, as its claims were speculative and unsupported by evidence of actual loss or causal link between the infringement and...

Court Disposition

Plaintiff's claim for copyright infringement succeeds in part; injunction and nominal damages awarded.

Orders

  • A permanent injunction restraining the Defendant from infringing the Plaintiff's copyright in the photograph of the man playing drums as used in the scratch-card design.
  • Defendant to destroy all infringing copies of the scratch cards within 30 days and file an affidavit of compliance.