For years, a business or producer group wanting to protect a place-based product name in Kenya had one real option: register a collective or certification trademark and hope it did enough work. The draft Geographical Indications Bill offers a standalone right in Kenya instead, built for this exact purpose. The draft Geographical Indications Bill, 2026 offers something different, a standalone right built for this exact purpose. Understanding what actually changes, and what a business with an existing trademark should do about it, matters more than the general overview of the Bill itself.
Two different legal ideas wearing similar clothes
A trademark, including a collective or certification mark, protects a sign that distinguishes one trader’s goods from another’s. The registrant, or the members of the certifying body, hold a private right they can enforce, license, and generally control. A geographical indication protects something conceptually different: the link between a product’s characteristics and the place it comes from. Nobody owns that link in the way a business owns a brand. The draft GI Bill makes this explicit by creating an Administrator role rather than an owner. An Administrator, whether an individual producer or a body acting for a producer community, manages the GI on behalf of everyone entitled to use it, and cannot assign it, pledge it, or use it as loan security. A trademark owner can typically do all three with their mark.
Where the collective/certification mark route falls short
Under the current Trade Marks Act, a collective mark certifies membership in an association; a certification mark certifies that goods meet a defined standard. Neither was built to certify geographic origin as its primary function, so businesses and producer groups using them for that purpose have effectively been repurposing a tool designed for something else. This creates practical gaps: there is no requirement under trademark law that the underlying characteristics tying a product to its place of origin actually persist, no standardised process for confirming geographic boundaries, and no criminal penalty regime specific to false claims of geographic origin. The draft GI Bill closes each of these gaps directly, tying protection to the persistence of the product’s defining characteristics and reputation, involving county governments in confirming boundaries, and introducing criminal penalties, a fine of up to five million shillings, imprisonment for at least two years, or both, for intentional infringement or false representation of GI status.
What happens to trademarks that already exist
This is the question that matters most for businesses currently holding a relevant trademark. The draft Bill does not require existing trademark holders to give anything up automatically. It allows continued good faith use of an existing trademark that is identical or similar to a geographical indication registered later, recognising that businesses built goodwill under the trademark system before the GI regime existed. That said, the Bill also gives the Registrar of Trade Marks power to refuse or invalidate new trademark applications that would deceive the public about a product’s true geographic origin once a relevant GI is registered. In practice, this means existing trademark rights are largely grandfathered, but the door closes going forward for new applications that conflict with a registered GI.
A standalone right in Kenya versus the trademark route
For a business deciding how to protect a place-based product today, the choice is not strictly either/or. A collective or certification trademark still offers something a GI registration does not, a private, ownable right that the holder controls directly, including the ability to license it commercially in ways an Administrator cannot. A GI registration offers something a trademark cannot: recognition that the product’s value comes from an entire region’s shared characteristics, protection that persists independently of any one business’s continued operation, and criminal enforcement backing. Producer cooperatives and county-level industries built around a shared regional product, coffee from a specific highland area, tea from a particular county, are generally better served by the GI route once it exists in force. A single company’s proprietary brand built around a place name, by contrast, may still be better protected as a trademark, since a GI registration would not give that company exclusive commercial control the way a trademark does.
What to do while the Bill remains in draft
The draft Geographical Indications Bill, 2026 has completed nationwide public participation but had not, as of the most recent publicly available information, been introduced in the National Assembly. Businesses currently relying on a collective or certification trademark for a place-based product should use this window to review whether that trademark would be grandfathered as good faith use under the draft Bill’s terms, and producer groups considering a future GI application should begin documenting the specific characteristics and reputation tying their product to its place of origin now, since that evidentiary record will matter once registration becomes possible.
How We Can Help
Clay & Associates Advocates advises businesses and producer groups on choosing between trademark and geographical indication protection for place-based products, and on positioning existing trademarks correctly ahead of the draft Geographical Indications Bill, 2026 taking effect. Contact our Intellectual Property team to discuss which route fits your product and business structure.
Sources: draft Geographical Indications Bill, 2026 (Ministry of Investments, Trade and Industry and Kenya Industrial Property Institute); Trade Marks Act (Cap. 506). For the Bill’s full provisions, see our overview of the draft Geographical Indications Bill.
Frequently asked questions
Do I need to give up my existing trademark if a geographical indication is registered over similar territory?
Not automatically. The draft Bill allows continued good faith use of an existing trademark that is identical or similar to a later-registered GI.
Can I apply for both a trademark and a geographical indication for the same product?
The two serve different purposes, a trademark protects your specific brand, a GI protects the region’s shared reputation, so businesses with both an individual brand and a regional product connection may reasonably hold both, though this should be assessed case by case.
Is a geographical indication stronger protection than a trademark?
Not stronger in every sense, different. A GI carries criminal penalties and is tied to persistent regional characteristics, but it cannot be owned, assigned, or commercially licensed the way a trademark can.
Should our cooperative wait for the GI Bill to pass before doing anything?
No. Documenting the specific characteristics and reputation linking your product to its place of origin now will strengthen any future GI application, regardless of when the Bill is enacted.
