The law governing Intellectual Property (“IP”) deals with the rules for securing and enforcing legal rights to inventions, designs and artistic works. Just as there are relevant laws that protects ownership of personal property and real estate, so also do we have laws that protect the exclusive use and control of intangible assets. There are several compelling reasons why it is imperative to protect intellectual property. First, the progress and well-being of humanity, rests on its capacity to create and, invent new works in the areas of technology and culture. Second, the legal protection of new creations encourages the commitment of additional resources for further innovation. Third, the promotion and protection of intellectual property spurs economic growth, creates new jobs, industries, and enhances the quality.
Furthermore, it gives incentives to people who take out time to develop creative works, that benefits the society and consequently ensures that they can profit from their works without fear of misappropriation by others.
Intellectual Property differs from other forms of property because it is mostly intangible; and also a product of the human imagination. IP are product(s) of human creativity or ingenuity with inherent commercial value. The commercial interest enjoys the protection of the law. IP refers to creations of the intellect for which a monopoly is assigned to designated owners by law. IP rights are the protections granted to the creator of intellectual property which include trademarks, copyright, patents and design rights.
The right to enjoy the benefits of works created by a person is, a fundamental human right which has been embedded in Article 27 of the Universal Declaration of Human Rights (to which Nigeria is a party), provides for the right to benefit from the protection of moral and material interests resulting from authorship of scientific, literary or artistic productions.
In today’s business world, the essence of protecting Intellectual property rights, vide registration at relevant trade registries cannot be undermined. This is carried out by the Commercial Law Department of the Ministry of Trademarks, Patents and Designs Registry in Abuja, Nigeria. The importance of Intellectual Property is underscored by the fact that intellectual property laws assist the owners of most types of IP by preventing others from copying, performing, or distributing those works without their permission. Without IP laws, duplication of original works would be made easy and sales for lower prices, leaving the original owners without any commercial benefits for their creative efforts. The Nigerian Law seeks to obviate this problem by making it illegal to reproduce various forms of Intellectual Property without the permission of the creator.
Types of Intellectual Property:
Patent
A patent is an exclusive right granted for an invention of a product or process, that provides a new way of doing something, or that offers a new technical solution to a problem. The statute which governs this right in Nigeria is the Patents and Designs Act. A properly operated patent system, whichserves as a tool for ensuring justice to an inventor of a new and useful product, to reward his intellectual effort. It gives the inventor a reasonable opportunity to enjoy the exploitation of the invention, free of the hindrance of copiers and imitators. It is also a way of stimulating technological development which is always welcome in Nigeria. This is because the protection it affords, encourages indigenous inventive activity as well as the subsequent innovative work that will put these inventions into practical use. In Nigeria, a person seeking to register a patent must satisfy the tripartite requirements of newness, inventive activity and capability of industrial application. It in essence, protects inventions that demonstrate technological progress- examples of which are Banks’ mobile banking Apps, Uber App, etc.
The inventor is required to have duly exercised his inventive faculty in a manner considered sufficiently ingenuous to justify the grant of the patent. The test is an objective, one- which is a comparison between the ‘invention’ and what was previously known. Registration of a patent in Nigeria is carried out at the Trademarks, Patents and Designs Registry which has its administrative headquarters located at the Federal Capital Territory, Abuja.
Copyright
Copyright is a form of Intellectual Property Protection. Copyright Protection is available for original works of authorship that are fixed in a tangible or intangible form, whether published or unpublished. The primary objective of copyright law is to ensure that those who create knowledge are adequately rewarded economically and,also to restrain people from using their work without permission. Adequate reward not only encourages a creator to be more productive but also motivates others to venture into creativity. In that way, the Nigerian copyright law is able to achieve the advancement of knowledge, promote learning and development of civilization. The general scheme of copyright law is simple enough. The law gives to the creator of a work, which may be a literary, musical, or artistic, a cinematograph film, sound recording, the exclusive right to control the exploitation of his work[5]. Prompt registration is advised so as to enjoy the protection of the law.
There are however exceptions to this rule, one of which is fair usage. A fair use is the copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody of copyrighted work. Such uses can be done without permission from the copyright owner. Exploitation of a work without the consent of the copyright in the work is an infringement. Copyright may be conferred on a work which is eligible for copyright. It is essential that an author in Nigeria registers his right of authorship with the Commission so as to take full advantage of the protection of the law when an infringement occurs. The law regulating copyright in Nigeria is the Copyright Act.
Trademark
Trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. Trademark laws protect words, slogans and symbols that serve to identify different brands of goods and services in the market place. In the modern commercial world where competition holds sway, businesses often invest heavily in advertising their brands of goods and services through the media. The effect of this is that, more than ever before, the Nigerian consumers are presented with an extensive and often bewildering array of products and services which serve same or similar functions. The consumers thus need to be able to take informed decisions as to what brand to go for at the sight of a desired product within a split-second. In this busy and saturated business environment, trademarks perform diverse functions. They indicate the source or origin of products or services and thus help consumers to identify goods or services emanating from a particular business undertaking and to distinguish them from those of others. It enables consumers to make quick purchasing decisions.
The basic purpose of trademark law is to promote the distinctive mark of a product. The Nigerian consumer protection laws are targeted at protecting the consumers against the whims and caprices of fraudulent and unscrupulous manufacturers. Investments that will produce high quality products will no doubt be achieved if consumers are able to identify such quality in the market place. This will also decrease unfair competition to the bearest minimum. Trademarks provide consumers a shorthand way for finding goods and services they desire. Where there is no means of protecting exclusive right to an identification mark, then consumers might have to contend with a market place where products from different sources look identical and confusing. Hence, it is highly pertinent to register one’s trademark in Nigeria so as to have exclusive rights to its use, debar others from using it and also claim damages from its unauthorized use.
The most prudent way to go about filing a trademark application is to first of all involve a trademark attorney about the proposed trademark. The attorney would then evaluate the proposed mark for any obvious problems that could block its registration or otherwise be problematic for the client.
In addition, trademarks also perform what has been referred to as ‘guarantee function’, signifying that all goods and services bearing the trademark are of equal quality, thus guaranteeing customer satisfaction with the product; it could also be a warning sign for consumers who have had a negative experience with a product bearing the mark. Hence, a producer must ensure prompt registration of its trademark to afford it adequate protection under the Nigerian Laws. The function is particularly important in the modern day age, where consumers very rarely have personal knowledge of their suppliers. Purchases are therefore often based on expectations about the quality of the product, arising from previous experience or the recommendations of others.
Trademarks play a vital role in advertising and other forms of marketing that so much dominate the commercial world today. The essence of trademark registration in Nigeria is inexhaustible. Some of the benefits include:
- Grants the owner of the mark the exclusive right to use the trademark nationwide in connection with the goods and services listed in the registration.
- Provides nationwide “constructive notice” of a business trademark rights, thereby eliminating any argument by a subsequent user.
- Grants the right to use the ® symbol.
- Grants the trademark owner a priority use date that relates back to the date of filing the trademark application.
- Provides the right to recover damages and enforce one’s trademark rights in court. Etc.
Interestingly, trademarks thrive more than the company name (we all take Coca-Cola, but only a few know that Coca-Cola is produced by the Nigerian Bottling Company). Catchy words and phrases, logos, designs, packaging and other signs or symbols perform the advertisement of a product. Ease of pronunciation should also be considered when picking a trademark.
Registration of trademark in Nigeria establishes one’s right in the mark as there can be no infringement of an unregistered mark. A trademark must pass the test of distinctiveness; that when one sees the mark, one’s mind should immediately go to the product and to no other. Any person seeking to be the proprietor of a trademark proposed to be used by him must apply in writing to the Registrar in the prescribed manner for registration. However, preliminary and professional advice should be sought on the distinctiveness of the proposed trademark. Registration is an evidence of title and is further a condition precedent to an action for infringement, as the burden of proof lies on the proprietor of the registered trademark in Nigeria. The court in determining whether a trademark is infringed or likely to cause confusion in the mind of the consumers will consider both identical marks- making use of the sight and sound. In Beecham Group Ltd. V. Esdee Food Products (Nig) ltd., the court held that the trademark of the Defendant (Glucose- Aid) was so similar to that of the Plaintiff (Lucozade) as to be likely to cause confusion. The relevant test in that case was the similarity in the sound of the two marks.
Also, Section 30(1)(d) of the Companies and Allied Matters Act states that ‘No company shall be registered under this Act by a name which- in the opinion of the Commission would violate any existing trademark…unless the consent of the owner of the trademark… is obtained’
Hence, even if no company exists by the name Coca-Cola Nigeria Limited in Nigeria, the trademark- Coca-Cola already exists in Nigeria (under the relevant trademark class) and no company can be registered with such name under the Nigerian laws except by the company itself or under its authority.
However, the owner of a trademark may permit others to use its trademark by granting such persons a license. This is called Franchise. Many franchise businesses such as Gas Stations and restaurants involve trademark licensing. The owner of the trademark must supervise such license to ensure consistency in the quality of goods and services. The law regulating trademark law in Nigeria is The Trademarks Act.
Design rights
Design rights is a sui generis Intellectual Property Right. Designs give protection for shapes, lines, patterns, texture etc. The law of industrial designs protects the outward or aesthetic appearance of products. The protection afforded by law is in recognition of the importance of visual appeal to customers in the choice of products. This is particularly so when there are a variety of products performing the same function in the market place. Designs therefore constitute a key factor in the marketability, and hence the commercial success of products. A design is a form of intangible property. The law protects this property by grant of an exclusive right of exploitation. By means of the protection granted, the statutory creator of a design is rewarded for his creative effort. Designs include; textile design, flower vase, shoe sole, shape of a car- Toyota Camry will not have the same shape with Kia Cerato, etc.
Like patents, it is also required that for a design to be registrable, it must satisfy a universal standard of newness i.e, it must not have been published anywhere at any time by any means whatsoever before the date of application for registration in Nigeria. The question that arises from this provision is whether the design has to have a totally new concept, hitherto unknown, or if it suffices, if a known concept is applied to a product in an ingenious way. The latter interpretation will appear to be more realistic. A higher level of creativity is called for on subsequent creator. There must be originality or novelty in the design to make it a proper subject of registration. The laws governing designs in Nigeria is the Patents and Designs Act.
IP rights are granted only upon registration. It is imperative to reiterate that such rights must be registered in every jurisdiction wherein the product is being utilized to enjoy the benefit of registered Intellectual Property Rights. Flowing from the above paragraph, there would be no gain saying to re-emphasize the need for inventors must take out their IP registration in every country they desire protection as rights granted within a jurisdiction does not extend to other countries.. Section 251(1f) (1c)of the Constitution of the Federal Republic of Nigeria vests the Federal High Court with jurisdiction over matters arising from any enactment relating to copyright, patents, trademarks and designs.
Challenges of registering a Trademark in Nigeria
Delay by the Regulatory Agency
Upon filing the requisite forms at the Trademark Registry, a Notice of Acceptance is consequently issued by the Trademarks registry to the applicants. Further to the issuance of a Notice of Acceptance, a Trademark journal is to be published by the Trademark Registry wherein the general public is invited to submit objections as to the possible reason(s) why a Trademark should not be registered in favour of the applicant.
However, the existing reality presently faced by Intellectual Property practitioners is that, the aforesaid Trademark Journal would usually take several months before same is published by the Trademark Registry thus delaying the time within which to conclude the registration process.
The consequence of this is that, until the publication is released, and no objections are received, trademark registration certificate would not be issued by the Trademark Registry.
It is our considered opinion that the Trademark Registry should take a cue from the Corporate Affairs Commission’s modus operandi, whereby before an Incorporated Trustee is registered, its proposed name and objectives must first be published in national dailies inviting objections from the general public, should there be any.
[1] http://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf last accessed on July 1, 2017.
[2] The Universal Declaration of Human Rights (UDHR) is a milestone document in the history of human rights. Drafted by representatives with different legal and cultural backgrounds from all regions of the world, the Declaration was proclaimed by the United Nations General Assembly in Paris on December 10, 1948.
[3] Cap. P.2 (Vol. 13) 2004 LFN.
[4] A.O Oyewunmi (Mrs.) P. 447-448 , Commercial Law in Nigeria, Edited by A.O Akanki Rvsd. Ed, (Unilag Press Ltd), 2007.
[5] Prof. E. E Uvieghara, p. 376 Commercial Law in Nigeria, (Ibid)
[6] Stanford University Libraries; Copyright and Fair Use; http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/ last assessed on July 30, 2017
[7] CAP C. 28 LFN 2004
[8] https://www.uspto.gov/trademarks-getting-started/trademark-basics/trademark-patent-or-copyright last accessed July 2nd, 2017
[9] See Frank Schecter, ‘The Rational Basis of Trademark Protection’, (1927) 40 Harv LR 813
[10] Ruth E. Annand and Helen E. Norman, Blackstone’s Guide to the Trade Marks Act, (Blackstone Press Ltd 1994) at 15
[11] The Supreme Court in Bell Sons & Co. Ltd v. Aka & Ors, {1972} 1 All N.L.R (Pt 1) pg 34
[12] {1985} 3 N.W.L.R. (Part 2) 112.
[13] CAP. C20 LFN 2004
[14] Cap. P.2 (Vol. 13) 2004 LFN
[15] A.O Oyewunmi (Mrs.) P. 485-486 , Commercial Law in Nigeria (Ibid)
[16] Supra.
Written by Adedamola Ayankoya
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