In an age where ideas travel faster than the law, the question of who owns what has never been more urgent or complex. The borderless, restless, and endlessly duplicable digital economy has unsettled long-held assumptions about originality, ownership, and value. Images, designs, sounds, and data across continents in seconds, often stripped of attribution and monetised far from their source. In this world, intellectual property has become the frontline of economic justice and creative equity. It is no longer a niche concern for artists and corporations but a national economic issue that speaks to how a society values its thinkers, creators, and innovators.

The Bata-Umoja Case: Goodwill/Market Position vs Intellectual Property Rights

Nowhere is this contest sharper than in Kenya, a country fast positioning itself as a continental digital and innovation hub. Recent jurisprudence has shown that the courts are alert to this new terrain, none more so than in the recent landmark decision of Bata Brands SA & Another v Umoja Rubber Products Ltd. In a judgment delivered in April 2025, the High Court of Kenya reset the standard for assessing similarity in intellectual property disputes, signalling a decisive break from the formalist traditions that have long guided such cases.

At the heart of the matter was a dispute over school shoes. Bata, the global footwear brand, claimed that Umoja’s Shupavu-branded shoes bore an unacceptably close resemblance to its Toughees line. This product has built a distinctive reputation in Kenya’s schools for over fifteen years. Bata argued that Umoja’s products were designed to confuse consumers, infringing on the goodwill and market position it had painstakingly built. In defence, Umoja countered that the design in question was neither unique nor proprietary to Bata, having been used by multiple manufacturers even before Bata’s alleged adoption.

What might have appeared at first glance to be a dry commercial dispute over soles and laces quickly evolved into a far more consequential question: how should courts in a digital and hypercompetitive economy determine when one product unlawfully mimics another? Traditionally, Kenya’s courts relied on side-by-side comparisons and static legal definitions. But the court in the instant case, in a significant and necessary departure, anchored its decision in the practical realities of the market. The appropriate test, the basis of its reasoning, must ask whether an ordinary consumer, exercising reasonable care, is likely to be confused by the contested products in the context in which they are sold.

This approach is not merely pragmatic; it reflects modern Kenya’s commercial and cultural realities. In an era where shoes, smartphones, and music albums are promoted as much on Instagram and WhatsApp as in physical stores, the scope for consumer deception has expanded dramatically. Designs are copied, modified, and circulated in ways that old legal frameworks were never built to address. This judgment acknowledges that in informal markets and digital retail spaces, the dynamics of consumer decision-making have evolved, and with them, the obligations of the courts.

Significantly, while the Court found that Bata’s Toughees brand had built goodwill over its fifteen years in the market, it ruled that this goodwill was tied more to the brand name than any distinctive shoe design. Evidence showed that similar designs predated Bata’s, and consumers could generally distinguish between the two products in practice. In dismissing Bata’s claim, the Court set an important precedent: goodwill alone does not confer a monopoly over standard industry designs, mainly where no distinctiveness exists, and the public is not easily misled.

Thomson Reuters vs. ROSS Intelligence Case: Scope of Fair Use

This recalibration is part of a broader global trend. A closely watched intellectual property case involving Thomson Reuters in Canada and the United States similarly tested the boundaries of proprietary rights in the digital era. The dispute centred on whether Thomson Reuters’ data aggregation and AI-powered legal research tools could claim ownership over legal documents and public records that, while technically in the public domain, had been processed, curated, and enhanced through proprietary algorithms. At stake was not just the fate of a business model, but the deeper question of whether data, when organised and enriched by artificial intelligence, acquires a new identity deserving of legal protection.

The courts ultimately sided with Thomson Reuters, recognising that value-added digital products derived from public information could, under certain conditions, attract intellectual property protection. This reasoning reflects a growing awareness in global jurisprudence that creativity in the digital economy often lies not in raw content but in how it is assembled, structured, and made accessible. It also underscores the emerging challenge of defining originality in a world where machines create, curate, and disseminate content alongside human authors.

Kenya’s IP Regulatory Framework: Time for Reform?

For Kenya, these local and international cases should serve as catalysts for urgent legislative reform. The country’s Industrial Property Act and Copyright Act, both enacted in 2001, were designed for an analogue economy. They offer little guidance on AI-generated works, non-traditional trademarks, or the ownership of value-added data. While the National Intellectual Property Policy of 2020 made bold recommendations for modernising these frameworks, implementation has been slow, leaving the courts to bridge the gap between outdated statutes and contemporary commercial practice.

Yet courts alone cannot shoulder this responsibility. A thriving digital economy demands a proactive policy framework that protects established global brands and empowers local creators, tech startups, and entrepreneurs. This includes recognising new forms of IP, clarifying data ownership in AI-driven industries, and enhancing enforcement mechanisms in digital marketplaces where counterfeit and copycat products flourish.

Capacity Building as a Complementary Effort

Equally vital is public education. As digital content creation proliferates, from Nairobi’s fashion bloggers to Mombasa’s coders and Kisumu’s digital storytellers, awareness of intellectual property rights remains dangerously low. Many creators are unaware of the avenues available for registering, defending, or monetising their work, leaving them vulnerable to exploitation locally and abroad.

Conclusion

Ultimately, cases like Bata v Umoja and the Thomson Reuters litigation reveal that the digital economy’s true value lies in originality, not merely in content, but in the distinctive way ideas are expressed, products are designed, and data is harnessed. The law needs to keep pace with this new reality, not out of deference to corporate power but to safeguard the equitable growth of knowledge economies.

As Kenya cements its position as a digital innovation hub in Africa, the question is not whether intellectual property should be protected but how. The courts have signalled their intent. Parliament, regulators, and the business community need to now act decisively by working together and crafting a legal and policy environment where ideas are defended, creators are empowered, and the digital marketplace remains both fair and fertile.