Brand Makmende: Who owns it?

Monday, 29 March 2010 12:14

Written by Wakili

As Nova had it before all at the nairobian, Makmende is back. And everybody, well almost everybody, is dashing in to cash on Brand Makmende. The .com, .net and .org extensions for Makmende have all been registered by seemingly different persons. Even, the co.ke is now gone. It now appears that the group wrongly attributed with creating Makmende does not even own the Makmende domain names as they did not have enough money to register any of them. Yes, did not have about Kshs. 800 to register the domain name. And yes, I say wrongly attributed and we shall get to that in the consideration on who owns Brand Makmende.

Makmende, was and is (according to the online Sheng dictionary) a slang term for a ‘to want to be a hero’. As with all slang terms, it is next to impossible to really know who created the word. Not uncommon for a slang word, it became dormant, replaced by more imaginative words and was thereafter consigned to die off until now. It is thus clear that what Just a Band did was not to create Makmende the character but use one aspect of the character in a music video and then unleash the character onto the internet and specifically social networks.

Makmende soon became so famous and most people wanted a piece of him. For now Brand Makmende is red hot and an industry onto himself. Websites have been created, t-shirts would be made, stories would be written and there are even talks of some local television stations producing a series on the adventures of Makmende.

With all these in mind, the question is who owns the rights to Brand Makmende? Who has the intellectual property rights to it? The answer is actually, nobody. The question should then be whether anybody can claim any intellectual property right to it. There are generally three major faces of intellectual property rights: trademark, copyright and patent.

Patent is right out so wont even be mentioned beyond this point.

Copyright.

Copyright, basically protects the expression of an idea; not the idea itself. Makmende could be an idea but is not an expression of one. You could argue that it is an idea behind the ‘wanting to be a hero’ but it is not that expression that copyright protects. It has to be original as well. With Makmende being a common slang word, the copyright protection for the name Makmende follows Patent into irrelevancy.

Trade Mark

Makmende as a word cannot be registered as a trade mark. There are several reasons why and one of them is that the name is not distinctive enough. In fact it is a descriptive word. So nobody can really stop one from using Makmende to generate revenue. I can do t-shirts of Makmende; I can do websites for Makmende and a host of other Makmende stuff, and nobody can really legally stop me.

That does not however mean that Just a Band cannot still claim some rights on Brand Makmende and assert some exclusive control over it. After all, Super Man is as descriptive as you can get and we all know that you don’t go around making Super Man movies without breaching all forms of intellectual property rights.

For a start, Just a Band can claim Copyright on all of their Makmende stories. They would have copyright on the out of the box music video they have done on Makmende. They would have copyright on any stories that they may do and any further works on the character. But that should not be confused with stopping somebody else from doing their own Makmende stories.

Then they can incorporate a logo into the Makmende word and register that (most likely disclaiming exclusive rights to the word Makmende when used separately and apart from the mark as a whole). If the Registrar of trade marks somehow allows the mark to be registered without a disclaimer, one can later successfully challenge that registration. That artist impression of a badass guy might not be a bad place to start. It would mean that one won’t be able to for example do t-shirts with that particular image without their say so.

However, there are many variances that Brand Makmende can take and not even Just a Band, can stop people from doing that. One can actually come up with a different Makmende characters (a super hero, an ati-super hero, a house maid etc) and develop the same. As of now Brand Makmende is like a blank canvas, and anybody can paint their own pictures and each person can always assert copyright or trade mark rights on those pictures.

Most important thing that Just a Band should be doing now is seeing their intellectual property lawyer to chart the way forward. It is a pity they never saw that lawyer before all these started. The first advice might have been to choose a distinct name for their character. A name that they can easily protect. But maybe the whole success of the Brand Makmende has been the choice of name.

As a lawyer, this is one Brand I look forward to seeing develop.

Share This Article

| More...

Name:	*
User name:	*
E-mail:	*
Password:	*
Confirm password:	*
Fields marked with an asterisk (*) are required.

Brand Makmende: Who owns it?

You May Also Like

Comments

Add comment

Latest Comments

Opinion on theNairobian

theNairobian News

theNairobian Sports

Arts & Entertainment