Kenyan lawyer explains why ‘Hakuna Matata’ Walt Disney using the phrase

Kenyan band Them Mushrooms popularize the phrase in 1984 when they released a classic titled ‘Kenya Hakuna Matata (Jambo Bwana)’ and since then tourists have been welcomed to Kenya by the classic tune.

Them-Mushrooms Pulse Live Kenya

Due to its simplicity and catchiness, Western tourists had no difficulty memorizing the phrase and as they went deeper into the Kenyan interior, they sometimes repeated it to bewildered locals alongside other Swahili words such as ‘Jambo Bwana’.

Them Mushrooms Pulse Live Kenya

The Kenyan government also joined the bandwagon and tried to use the phrase to market the country by positioning it as a ‘matata-free country’.

A section of Kenyans were therefore surprised and shocked to learn that ‘Hakuna Matata’ is a legal property of American movie house Walt Disney.

Lion King movie poster Pulse Live Kenya

Disney filled for copyright of ‘Hakuna Matata’ in 1994 when it released The Lion King movie. It was formally registered in 2003 and blocks anyone else from printing the Swahili phrase on T-shirts in the United States without consent from Disney.

It is registered under Class 25 for Clothing, Footwear and Headgear and it is but a brilliant strategy by the company to enhance revenue collection from the hugely popular Lion King Movie through merchandizing in the apparels sector.

Hakuna Matata trademark attracted public attention again this year after Disney announced that a live action remake of The Lion King will be released in July 2019 and that is probably how many Kenyans came to know about the ‘trademark’ history.

Hakuna Matata Pulse Live Kenya

Zimbabwean-Canadian activist Shelton Mpala soon launched a petition asking Disney to drop the Hakuna Matata trademark and has already garnered close to 40,000 signatures.

“I liken this to colonialism and robbery, the appropriation of something you have no right over. Imagine, "If we were to go that route, then we owe the British royalties for everyone who speaks English, or France for when we speak French."

Join us and say NO to DISNEY or any corporations/individuals looking to trademark languages, terms or phrases they didn't invent,” part of Mpala’s campaign read.

Mpala’s campaign struck a chord with Kenyans and soon hundreds signed the online protest making their ‘displeasure’ visible.

“Disney cannot commodify African languages,” “The audacity...” “You can't own a Swahili phrase that belongs to millions of Swahili speakers” “African heritage and language existed before Disney was incorporated and they cannot claim patent to product they did not develop. It is imperialist, unethical and inconsiderate to assume they have the right to do so,” are but just a few of the countless comments people left after signing the online campaign.

Liz Lenjo Pulse Live Kenya

So, in a bid to put this divisive matter to rest, Business Insider Sub Saharan Africa spoke to Liz Lenjo, an intellectual property lawyer based in Nairobi, Kenya, the supposedly home of Hakuna Matata.

“Disney has done nothing wrong by registering the trade mark for Hakuna Matata,” Lenjo told Business Insider Sub Saharan.

Ms. Lenjo says Walt Disney copyright of 'Hakuna Matata' extends only as much as printing of branded T-shirts in US by individuals and corporations is concerned and not the phrase itself.

“A trademark grants them exclusivity as far as the class they registered is concerned on their country of registration i.e USA,”

The main entrance to the Walt Disney World Resort in Florida, USA Pulse Live Kenya

Individual and companies wishing to manufacture goods not classified under Class 25 of the Nice Classification with Hakuna Matata phrase are free to do so and there are countless who have already done so even in United States.

“Other brands not within Class 25 of the Nice Classification can use the brand name. There are so many that have been registered with some dormant currently out of choice of the owners,” says Lenjo.

Kenyans Crying foul Pulse Live Kenya

Ms. Lenjo argues Kenyans are therefore misplaced in their anger and their argument has no basis since no one can claim complete custodianship of a language, more so a language like Swahili.

“Everything inspires everything. Language is a tool of communication and every language has it's history or gwneaoa from another culture, if we purport to restrict use of language and attach commercial value then we are all in debt,” says Lenjo.

Swahili people Pulse Live Kenya

Ms. Lenjo says while ‘Hakuna Matata’ is a Swahili phrase, not one people own it and it is not a property Kenyans can claim ownership for that matter.

“For example, Kiswahili has it's origin from Arabic and is influenced by various languages spoken across Africa. With a substantial part of it influenced by the Bantu communities which are many. In that respect for this argument to be viable, who are we paying? And for what?” Ms. Lenjo asks.

The word "Swahili" for instance was used by the early Arab traders to the East African coast and it means "the coast". Ultimately it came to be applied to the people and the language.

Swahili people Pulse Live Kenya

While some critics argue that Swahili is an old native language and indeed have a case it is an undeniable truth that Arab and Persian cultures had the greatest influence on the Swahili culture and the Swahili language.

The Arabic word "tisa" actually replaced the Bantu word "kenda" for "nine".

“Kiswahili is spoken by many East African languages and even the South is also embracing it. We have been making applications to have Kiswahili recognized as a UN language, then now we want people to pay to use it?” Lenjo wonders.

“Then let's pay the Brits who will intern pay the Germans as English is derived from some German roots,”

South African leader, Julius Malema Pulse Live Kenya

South African leader, Julius Malema recently proposed the adoption of a common language in Africa, hinting at Swahili being that language.

“We must develop a common language that can be used throughout the continent. Like Swahili, if it can be developed as the language of the continent,” he said while speaking at a media briefing organised by the Economic Freedom Fighters.

Ms. Lenjo argues it would be insane then to expect foreigners to pay for something Kenyans don’t own in the first case.

“That foreigners should come, see and pay for using it. But what of inspiration? Does that mean we shall be paying for inspiration too?

Liz Lenjo Pulse Live Kenya

Liz further adds that by Kenyan raising a storm in a teacup they are trending on dangerous grounds akin to calling for a complete censorship.

“It's the dangerous zone we are now entering,”

“And if you look at African communities, we have borrowed heavily from each other from languages to Cultural practices etc. We exchanged a lot and over time assimilated different ways of live etc. Now to come back and have this conversation over asserting who owns what, in my view public domain and knowledge will die! And defeat the purpose of IP Law,” says Lenjo.

Kenyans waving flags Pulse Live Kenya

Ms. Lenjo explains that the use of words in trademarks can be unique in one territory and obvious in another, and may also require a “Disclaimer” where the words are obvious or ordinary.

“For example, if I wanted to register a trademark for a shoe collection in Italy and I called it “Mama Mia”, I will not be getting exclusive rights in Italy over the word as it is an ordinary phrase in this particular country which means “My Mother.” If the name is available for registration for my clothing brand, I am likely to be granted but the question of how strong my shoe brand is another altogether. However, if I registered it here in Kenya, I would be required to give a translation instead since Kenya is not an Italian speaking country,” says Lenjo.

Masai footwear made from the tires of trucks. Pulse Live Kenya

This then means that there can be a TV brand called the same, or Ice Cream or any other non-competing businesses with the exclusion of shoes.

This is why ingenuity in creation of brands is important to gain exclusivity in its strict sense that is mostly sought by applicants.

Such restriction is also territorial, which means that it is protected in areas designated or chosen by the applicant. Because of the territorial nature of trademarks in this context, the strength will depend on the country designated by looking at the language, culture and use.

Lion king 2019 teaser Pulse Live Kenya

By the time Disney filled for the copyright of the phrase in US, no other individual or organisation had trademarked it under the class 25 in the country therefore giving them all the exclusive rights to restrict its use.

“Also note, since US is not a Swahili speaking country? the phrase Hakuna Matata is not generic as it's not their preferred language. If the mark was registered here in Kenya or East Africa, guys would care less and the sales of those t shirts would probably be a non-starter,” says Lenjo.

Kenya's capital, Nairobi City Pulse Live Kenya

In Kenya, budding entrepreneurs’ freely manufacture T-shirts branded ‘Hakuna Matata’ targeting tourists and Ms. Lenjo says it is legitimate since it's happening here in Kenya where the trade mark does not extend.

A Kenyan entrepreneur can also freely export say Kenyan coffee to the United States branded 'Hakuna Matata' so long as no other individual or company has already trademarked the phase under ' drinks and beverages' for example in US.

Liz says it is also good to note that in Kenya, trademarks are not granted for names, for example Wambui, Ochieng, Elizabeth, Kibet, Nzomo etc. These are ethnic names and ordinary English names that one cannot gain exclusivity over. However, the stylistic nature in which one write or design these names and other ordinary words is what get’s protection, and where you find it fit, one can declare the colour to a tee!

Hakuna matata branded Tshirts Pulse Live Kenya

And yes, as a result of Walt Disney trademark any Kenyan entrepreneur will be barred from printing clothes with Hakuna Matata and exporting it to US since it will lead to confusion and have a misleading effect on Disney's market.

“Disney was first in time and continues to use the trademark. So they have the right to defend their mark and stop such misleading goods from entering the US market,” says Lenjo.

A Trademark is a branch of the Intellectual Property rights system that grants exclusive use of a name, word, logo, symbols, combination of all these and colour as well. To be granted exclusive rights, a trademark MUST not be descriptive of the applicants goods or service. Which means it must be unique or uniquely used.

Trademarks Pulse Live Kenya

Liz adds that here in Kenya, Kenya Industrial Property Institute (kipi), the government custodian in charge of trade marks registrations also needs to start incorporating the “Disclaimer” system on Kiswahili words and maybe even Sheng and ethnic words as they ordinarily used in our linguistic culture.

'Hakuna Matata' for instance has not been trademarked here in Kenya.

Trademark Pulse Live Kenya

It is worth noting too that former president Daniel arap Moi was recently granted exclusive rights to the word ‘Kabarak’ a name of a town in Rongai constituency in Nakuru.

Kabarak is also a Kalenjin word which means a high or elevated place.

president Daniel arap Moi Pulse Live Kenya

According to Kenya Industrial Property Institute (kipi) Journal, Mr Moi applied for the trademark for 45 classes in 2016 and was granted the licences following no objection.

The trademarking in all 45 classes means no class of goods and services can be offered under that name.

Mr Moi owns Kabarak High School, Kabarak University and Kabarak farms.

Kabarak University Pulse Live Kenya

Any individual or firms marketing goods or services under the name “Kabarak” without Moi’s permission now faces a jail term of up to five years and a fine of Sh200,000 or both.

“Yes. One can register a geographical name so long as it has acquired distinctiveness with respect to the goods or services it is used in relation to and the goods or services are actually produced or offered in that geographic location,” Kipi managing director Sylvance Sange told Business Daily.

Kipi managing director Sylvance Sange presents the trademark certificate to the acting PS Mr Keritu Wamae. Pulse Live Kenya

Going forward Ms. Lenjo says Kenya and Africa in general will continue losing out and throwing ‘tantrums’ for as long as they don’t learn to appreciate the value of intellectual property rights.

“My advice to Kenyans and all developing nations is to educate themselves about IP first, especially the basic and then proceed to use their resources to create strong brands that can compete in the global market,”

“Our problem is we simply view ourselves as custodians” says Lenjo.

Ms. Liz Lenjo Pulse Live Kenya

Liz finalizes by saying Kenyans can continue using the phrase as much as they want, they can even wear ‘Hakuna Matata’ branded T-shirts to the US so long as they don’t go and sell it there.

So, ‘Hakuna Matata’ Walt Disney using the popular Swahili phrase, literally.