Kenya - United Arab Emirates CEPA (2025) - Electronic Database of Investment Treaties (EDIT)

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Kenya - United Arab Emirates CEPA (2025)

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Article 13.22. Non-Recordal of a License

Neither Party may demand the registration of trademark licenses as a prerequisite for establishing the Ucense's authenticity according to national laws and regulations of each Party.

Article 13.23. Domain Names

In connection with each Party's system for the management of its country-code top-level domain ("ccTLD") domain names, the following shall be available:

(a) an appropriate procedure for the settlement of disputes, preferably, or modelled along the same lines as, the principles established in the Uniform Domain-Name Dispute-Resolution Policy, as approved by the Internet Corporation for Assigned Names and Numbers (ICANN) or that:

(i) is designed to resolve disputes expeditiously;

(ii) is fair and equitable;

(iii) is not overly burdensome; and

(iv) does not preclude resort to judicial proceedings.

Section D. Country Names

Article 13.24. Country Names

Each Party may provide the legal means for interested persons to prevent commercial use of the country name of a Party in relation to a good in a manner that misleads consumers as to the origin of that good.

Section E. Geographical Indications

Article 13.25. Recognition of Geographical Indications

1. Geographical indication means an indication that identifies a good as originating in the territory of a Party, or a region or locality in that territory, where a given quality, reputation, or other characteristic of the good is essentially attributable to its geographical origin.

2. The Parties recognise that geographical indications may be protected through a trademark or sui generis system or other legal means.

3. The Parties may recognise the geographical indications protected and originating in the territories of the Parties according to national laws and regulations.

Article 13.26. Administrative Procedures for the Protection of Geographical Indications

Each Party shall provide administrative procedures for the protection or recognition of geographical indications through a trademark, a sui generis system or other legal means. Each Party shall, with respect to applications for protection or requests for recognition, ensure that its laws and regulations governing the filing of those applications or requests for recognition are readily available to the public and clearly sets out the procedures for these actions.

Article 13.27. Date of Protection of a Geographical Indication

If a Party grants protection or recognition to a geographical indication, that protection or recognition shall commence no earlier than the filing date (7) or date of request for recognition in the Party or the registration date in the Party, as applicable.

(7) For greater certainty, the filing date referred to in this Article includes, as applicable, the priority filing date under the Paris Convention.

Section F. Patents and Industrial Design

Article 13.28. Grace Period

Each Party shall disregard information contained in public disclosures of an invention related to an application to register a patent (8) if the public disclosure:

(a) was made by the inventor, applicant or a person that obtained the information from the inventor or applicant inside or outside the territory of each Party; and

(b) occurred within at least 12 months prior to the date of filing of the application.

(8) For greater certainty, patent may include utility model in accordance with national law and regulations.

Article 13.29. Procedural Aspects of Examination, Opposition and Invalidation of Registered Patent and Industrial Design

1. Each Party shall provide a system for the examination and registration of patents or industrial designs which includes:

(a) communicating to the applicant in writing, which may be by electronic means, the reasons for any refusal to register patent or industrial design; and

(b) providing the applicant with an opportunity to respond to communications from the competent authorities, to contest any initial refusal, and to appeal for any final refusal to register patent or industrial design.

2. Each Party shall provide opportunity for interested parties to seek cancellation or invalidation of a registered patent. A Party may, in addition, provide an opportunity for interested parties to oppose the registration of patent.

3. Each Party shall provide opportunity for interested parties to oppose the registration of an industrial design, and in addition may provide an opportunity to seek cancellation or invalidation of the registration of industrial design.

4. Each Party shall ensure that making decisions in opposition, cancellation, or invalidation proceedings to be reasoned and in writing, which may be delivered by electronic means.

Article 13.30. Amendments, Corrections, and Observations

1. Each Party shall provide an applicant for patent with at least one opportunity to make amendments, corrections or observations in connection with its application.

2. Each Party shall provide a right holder of patent with at least one opportunity to make amendments or corrections after registration provided that such amendments or corrections do not change or expand the scope of the patent right as a whole. (9)

3. Each Party may apply paragraphs 1 and 2, subject to any necessary modifications, with respect to amendments, corrections or observations to applications for industrial design registration, and registered industrial designs.

(9) It is understood that the amendments or corrections which do not change or expand the scope of the right means that the scope of the patent or industrial design right stays same as before or reduced.

Article 13.31. Industrial Design Protection

1. Each Party shall ensure that requirements for securing or enforcing registered industrial design protection do not unreasonably impair the opportunity to obtain or enforce such protection.

2. The duration of protection available for registered industrial designs shall amount to at least 10 years.

Article 13.32. Exceptions

A Party may provide limited exceptions to the exclusive rights conferred by a patent or an industrial design, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent or an industrial design and do not unreasonably prejudice the legitimate interests of the right holder, taking account of the legitimate interests of third parties.

Section G. Protection of Undisclosed Test or other Data

Article 13.33. Protection of Undisclosed Test or other Data for Pharmaceutical Products

1. If a Party requires, as a condition for granting marketing approval for a new pharmaceutical product, the submission of undisclosed test or other data concerning either or both the safety and efficacy of the product, that Party shall not permit third persons, without the consent of the person that previously submitted such information, to market the same or a similar (10) product on the basis of:

(10) For greater certainty, for the purposes of this Section, a pharmaceutical product is "similar" to a previously approved pharmaceutical product if the marketing approval, or, in the alternative, the applicant's request for such approval, of that similar pharmaceutical product is based upon the undisclosed test or other data concerning the safety and efficacy of the previously approved pharmaceutical product, or the prior approval of that previously approved product.

(a) that infomiation; or

(b) the marketing approval granted to the person that submitted such information, for at least five years from the date of marketing approval of the new pharmaceutical product in the territory of the Party.

2. A Party shall adopt or maintain a system other than judicial proceedings that precludes, based upon patent information submitted to the regulatory authority by a patent holder or the applicant for marketing approval, the issuance of marketing approval to any third person seeking to market a pharmaceutical product subject to a patent claiming that product, unless by consent or acquiescence of the patent holder.

3. Notwithstanding paragraph 1, a Party may taJce measures to protect public health in accordance with:

(a) the Declaration on TRIPS and Public Health;

(b) any waiver of any provision of the TRIPS Agreement granted by WTO Members in accordance with the WTO Agreement to implement the Declaration on TRIPS and Public Health and that is in force between the Parties; or

(c) any amendment of the TRJPS Agreement to implement the Declaration on TRJPS and Public Health that enters into force with respect to the Parties.

4. For the purposes of paragraph 1, a new pharmaceutical product means a pharmaceutical product that contains an active ingredient for which no other pharmaceutical product containing the same active ingredient has previously obtained marketing approval in the country.

Section H. Copyright and Related Rights

Article 13.34. Definitions

For the purposes of Article 13.35 and 13.37 through 13.44, the following definitions apply with respect to performers and producers of phonograms:

broadcasting means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting"; transmission of encrypted signals is "broadcasting" if the means for decrypting are provided to the public by the broadcasting organisation or with its consent;

communication to the public of a performance or a phonogram means the transmission to the public by any medium, other than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram;

fixation means the embodiment of smmds, or of the representations thereof, from which they can be perceived, reproduced, or communicated through a device;

performance means a performance fixed in a phonogram unless othetwise specified;

performers means actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore;

phonogram means the fixation of the sounds of a performance or of other sounds, or of a representation of sounds, other than in the form of a fixation incorporated in a cinematographic or other audio-visual work;

producer of a phonogram means a person that takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds, or the representations of sounds; and

publication of a performance or phonogram means the offering of copies of the performance or the phonogram to the public, with the consent of the right holder, and provided that copies are offered to the public in reasonable quantity.

right to authorise or prohibit means that with respect to copyright and related rights, the term right to authorise or prohibit refers to exclusive rights.

Article 13.35. Right of Reproduction

Each Party shall provide (11) to authors, performers, and producers of phonograms (12) the exclusive right to authorise or prohibit all reproduction of their works, performances or phonograms in any manner or form, including in electronic form.

(11) nationals a term of copyright protection that exceeds life of the author plus 50 years, nothing in this Article or Article 13.7 shall preclude that Party from applying Article 7(8) of the Berne Convention with respect to the term in excess of the term provided in this subparagraph of protection for works of another Party.

(12) References to "authors, performers, and producers of phonograms" refer also to any of their successors in interest.

Article 13.36. Right of Communication to the Public

Without prejudice to Articles 11 (1)(ii), 11bis(I)(i) and (ii), 11 ter(I)(ii), 14(I)(ii), and 14bis(I) of the Berne Convention, each Party shall provide to authors the exclusive right to authorise or prohibit the communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them (13)

(13) The Parties understand that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Chapter or the Berne Convention. The Parties further understand that nothing in this Article precludes a Party from applying Article 11 bis(2) of the Berne Convention.

Article 13.37. Right of Distribution

Each Party shall provide to authors, performers and producers of phonograms the exclusive right to authorise or prohibit the making available to the public of the original and copies (14) of their works, performances and phonograms through sale or other transfer of ownership.

(14) The expressions "copies" and "original and copies", that are subject to the right of distribution in this Article, refer exclusively to fixed copies that can be put into circulation as tangible objects.

Article 13.38. Related Rights

1. Each Party shall accord the rights provided for in this Chapter with respect to performers and producers of phonograms: to the performers and producers of phonograms that are nationals (15) of another Party; and to performances or phonograms first published or first fixed (16) in the territory of another Party. (17) A performance or phonogram shall be considered first published in the territory of a Party if it is published in the territory of that Party within 30 days of its original publication.

(15) For the purposes of determining criteria for eligibility under this Article, with respect to performers, a Party may treat "nationals" as those who would meet the criteria for eligibility under Article 3 of the WPPT.

(16) For the purposes of this Article, fixation means the finalisation of the master tape or its equivalent.

(17) For greater certainty, in this paragraph with respect to performances or phonograms first published or first fixed in the territory of a Party, a Party may apply the criterion of publication, or alternatively, the criterion of fixation, or both. For greater certainty, consistent with Article 13.7 of this agreement, each Party shall accord to performances and phonograms first published or first fixed in the territory of another Party treatment no less favourable than it accords to performances or phonograms first published or first fixed in its own territory.

2. Each Party shall provide to performers the exclusive right to authorise or prohibit:

(a) the broadcasting and communication to the public of their unfixed performances, unless the performance is already a broadcast performance; and

(b) the fixation of their unfixed performances.

3. Each Party shall provide to performers and producers of phonograms the exclusive right to authorise or prohibit the broadcasting or any communication to the public of their performances or pbonograms, by wire or wireless means, (18) (19) and the making available to the public of those performances or phonograrns in such a way that members of the public may access them from a place and at a time individually chosen by them.

(18) With respect to broadcasting and communication to the public, a Party may satisfy the obligation by applying Article 15(1) and Article 15(4) of the WPPT and may also apply Article 15(2) of the WPPT, provided that it is done in a manner consistent with that Party's ob ligations under Article 13.7 of this agreement.

(19) For greater certainty, the obligation under this paragraph does not include broadcasting or communication to the public, by wire or wireless means, of the sounds or representations of sounds fixed in a phonogram that are incorporated in a cinematographic or other audio-visual work.

4. Notwithstanding subparagraph (a), the application of the right referred to in subparagraph (a) to analogue transmissions and non-interactive free overthe-air broadcasts, and exceptions or limitations to this right for those activities, is a matter of each Party's law. (20)

(20) For the purposes of this subparagraph the Parties understand that a Party may provide for the retransmission of non- in teractive, free over-the-air broadcasts, provided that these retransmissions are lawfully perm itted by that Party' s government communications authority; any entity engaging in these retransmissions complies with the relevant rules, orders or regulations of that authority; and these retransmissions do not include those delivered and accessed over th e Internet. For greater certainty this footnote does not limit a Party's ability to avail itself of this subparagraph.

Article 13.39. Term of Protection for Copyright and Related Rights

Each Party shall provide that in cases in which the term of protection of a work, performance or phonogram is to be calculated: (21)

(21) For greater certainty, in implementing this Article, nothing prevents a Party from promoting certainty for the legitimate use and exploitation of a work, performance or phonogram during its term of protection, consistent with Article 13.40 and that Party 's international obligations.

(a) on the basis of the li fe of a natural person, the term shall be not less than the li fe of the author and 50 years after the author's death; (22) and

(22) The Parties understand that if a Party provides its nationals a term of copyright protection that exceeds life of the author plus 50 years, nothing in this Article or Article 13.7 shall preclude that Party from applying Article 7(8) of the Berne Convention with respect to the term in excess of the term provided in this subparagraph of protection for works of another Party.

(b) on a basis other than the life of a natural person, the term shall be:

(i) not less than 50 years from the end of the calendar year of the first authorised publication (23) of the work, performance or phonogram; or

(23) For greater certainty, for the purposes of subparagraph (b), if a Party 's law provides for the calculation of term from fixation rather than from the first authorised publication, that Party may continue to calculate the term from fixation.

(ii) anonymous and pseudonymous works are protected for a period of 50 years as of the beginning of the calendar year subsequent to the year in which such works have been first published, (24) Performance or Phonogram, not less than 50 years from the end of the calendar year of the creation of the work, performance or phonogram

(24) In case the author of such works has been known or specified or has disclosed his identity, the protection will be lifetime of the author and fifty years thereafter commencing as of the beginning of the calendar year subsequent to the author's death.

Article 13.40. Limitations and Exceptions

1. With respect to this Section, each Party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.

2. This Article does not reduce or extend the scope of applicability of the limitations and exceptions permitted by the TRlPS Agreement, the Berne Convention, the WIPO Copyright Treaty (WCT) or tbe WIPO Performances Pbonograrns Treaty (WPPT).

Article 13.41. Balance In Copyright and Related Rights Systems

Each Party shall endeavour to achieve an appropriate balance in its copyright and related rights system, among other things by means oflimitations or exceptions that are consistent with Article 13.40, including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled. (25) (26)

(25) As recognised by the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, done at Marrakesh, 27 June 2013 (Marrakesh Treaty).

(26) For greater certainty, a use that has commercial aspects may in appropriate circumstances be considered to have a. legitimate purpose under Article 13.40.

Article 13.42. Contractual Transfers

Each Party shall provide that for copyright and related rights, any person acquiring or holding any economic right (27) in a work, performance or phonogram:

(a) may freely and separately transfer that right by written contract; and

(b) by virtue of contract, including contracts of employment underlying the creation of works, performances or phonograms, shall be able to exercise that right in that person's own name and enjoy fully the benefits derived from that right. (28)

(27) For greater certainty, this provision does not affect the exercise of moral rights.

(28) Nothing in this Article affects a Party's ability to establish: (i) which specific contracts underlying the creation of works, performances or phonograms shall, in the absence of a written agreement, result in a transfer of economic rights by operation of law; and (ii) reasonable limits to protect the interests of the original right holders, taking into account the legitimate interests of the transferees.

Article 13.43. Obligations Concerning Protection of Technological Measures and Rights Management Information

1. Each party shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors, performers or producers of phonogra.ms in connection with the exercise of their rights as provided under Article 13.35, Article 13.36, Article 13.37 and Article 13.38 of this Agreement, that restrict acts, in respect of their works, performances or phonograms, which are not authorised by the authors, performers or producers of pbonograms concerned or permitted by law.

2. Each Party shall provide adequate and effective legal remedies against any person who knowingly, without authorisation removes or alter any electronic rights management information and/or distribute, import for distribution, broadcast or communicate to the public, without authority, works or copies of works knowing that electronic rights management information (29) has been removed or altered without authority.

(29) For the purpose of clarity "rights management information" shall be interpreted to be as provided under Article 12 of the WCT.

Article 13.44. Collective Management

The Parties recognise the role of coUective management societies for copyright and related rights in collecting and distributing royalties based on practices that are fair,efficient, transparent and accountable, which may include appropriate record keeping and reporting mechanisms.

Section I. Enforcement

Article 13.45. General Obligation In Enforcement

Each Party shall ensure that enforcement procedures as specified in Part III, Section 1 of the TRIPS Agreement are available under its law so as to permit effective action against any act of infringement of intellectual property rights covered by this Chapter, including expeilitious remedies to prevent infringements and remedies that constitute a deterrent to further infringements. These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse. Each Party will upon request provide available information according to its national laws and regulations to facilitate the enforcement of IPRs.

Article 13.46. Border Measures

1. Each Party shall, in conformity with its domestic law and regulations and the provisions of Part III, Section 4 of the TRIPS Agreement adopt or maintain procedures to enable a right bolder, who has valid grounds for suspecting that the importations of counterfeit trademark or pirated copyright goods may take place, to lodge an application in writing with the competent authorities, administrative or judicial, in the Party in which the border measure procedures are applied, for the suspension by that Party's customs authorities of the release into free circulation of such goods.

2. A Party may enable such an application to be made in respect of goods which involve other infringements of intellectual property rights, provided that the requirements of Part III, Section 4 of the TRIPS Agreement are met. A Party may also provide for corresponding procedures concerning the suspension by the customs authorities of the release of infringing goods destined for exportation from their territory as per its domestic laws and regulation.

Chapter 14. ADMINISTRATION OF THE AGREEMENT

Article 14.1. Joint Committee

1. The Parties hereby establish a Joint Committee.

2. The Joint Committee shall be composed of representatives of the UAE and Kenya at the level of:

(a) ministers;

(b) senior officials; and

3. The Joint Committee may establish standing or ad hoc subcommittees or working groups and assign any of its powers thereto.

4. Each Party shall be responsible for the composition of its delegation.

5. The Joint Committee shall meet within one year of the entry into force of this Agreement. Thereafter, it shall meet every two years unless the Parties agree otherwise, to consider any matter relating to this Agreement. The regular sessions of the Joint Committee shall be held alternately in the territories of the Parties.

6. The Joint Committee shall also hold special sessions without undue delay upon request from either Party.

7. The functions of the Joint Committee shall be to:

(a) review and assess the results and overall operation of this Agreement in the light of the experience gained during its application and its objectives;

(b) consider and recommend any amendments to this Agreement that may be proposed by either Party, including the modification of concessions made under this Agreement;

(c) endeavour to amicably resolve disputes between the Parties arising from the interpretation or application of this Agreement;

(d) supervise and coordinate the work of all sub-committees and working groups established under this Agreement;

(e) consider any other matter that may affect the operation of this Agreement;

(f) upon request by either Party, to propose mutually agreed interpretation to be given to the provisions of this Agreement;

(g) adopt decisions or make recommendations as envisaged by this Agreement; and

(h) carry out any other functions as may be agreed by the Parties.

8. The Joint Committee shall establish its own working procedures.

9. Meetings of the Joint Committee and of any standing or ad hoc subcommittees or working groups may be conducted in person or by any other means as determined by the Parties.