A CRITICAL STUDY ON THE VARIOUS CATEGORIES OF IPR
INTRODUCTION
Intellectual Property Rights (IPRs) have gained momentum in recent times and have been widely recognised by several countries of the World. It is the right that is bestowed on a person based on the expression of his/her ideas. The rationale behind intellectual properties is similar to the importance that is given to tangible properties owed by a person. This is because, efforts, time, and skills are involved, not based on the points conceived in the human minds, but their ability to bring it into reality.
Intellectual Property Rights define the nature of a person’s right (natural or juristic), the mode of acquiring the same, the conditions under which it can be transferred, and how remedies can be attained in situations of infringement or other legal violations.
Several international conventions, notably the Paris Convention (1967), Berne Convention (1971), Rome Convention (1961), the Paris Agreement, and Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), along with international bodies like World Intellectual Property Organization (WIPO), the World Trade Organization (WTO), etc. have been established to attend the objectives and purposes of protecting intellectual property.
THE NEED FOR INTELLECTUAL PROPERTY RIGHTS
The protection of intellectual properties is needed for several reasons, a few of which include:
- The encouragement of inventions and innovations.
- Creation of an avenue for earning by the owner.
- It plays a crucial role in the nation’s economy and that of the individual owning the right.
CATEGORIES OF INTELLECTUAL PROPERTY
There are many categories of intellectual property, these classifications are accompanied by diversified rules to be followed, varying years of protection, and distinct procedures to be followed in acquiring the rights. These include:
- Trade Mark
- Copyright
- Patents
- Trade Secret
Others include Geographical Indications (GI), Plant Variety and Integrated Circuit Intellectual Property Rights. While geographical indications (GI) are focused on the rights granted to goods with unique origins to the exclusivity of others from manufacturing or reproducing the same, Plant Variety deals with rights given to engineering activities such as modification of seedlings or breeding of new plant varieties that are generally done by farmers. Integrated Circuit has globally been regulated with special regard to the Treaty on Intellectual Property in Respect of Integrated Circuits (1989), it protects the layout designs of three-dimensional placements of elements and the interconnection that makes up the miniature electrical circuit, even so, the point of consideration focuses on the four IPRs as numbered above.
1. TRADEMARK
A trademark consists of a size, symbol, design or expression that is recognisable or directly linked to a product or service concerning its source of origin. In Nigeria, trademarks are regulated under the Trademarks Act 2004 which requires the representation of the trademark and the classification of the goods or services under which the mark falls.[i] It is valid for seven years after its registration subject to the renewal of a successful period of fourteen years.
Trademark is governed by certain legal principles which include:
- Principle of Acquired Distinctiveness: This principle is relevant to determine whether a Trademark has acquired distinctiveness over time through extensive use, even if they are initially descriptive or generic.
- Trademark Passing Off: It helps to identify if a trademark is identical or confusingly similar to another party's trademark in connection with goods or services without authorization, especially when it is not registered.
- Trademark Dilution: This principle protects famous or well-known trademarks from unauthorized use that could weaken their distinctiveness or tarnish their reputation.
- Likelihood of Confusion: This principle assesses whether consumers are likely to be confused or misled by similarities between trademarks, especially regarding the source of goods or services.
2. COPYRIGHT
Copyright is a renowned category of intellectual property rights that has been in existence since time immemorial. It is known for its ability to protect both the legal and moral integrity of authors in their works, this can be in terms of literal work, dramatic work, cinematograph film, artistic work, broadcast works, musical works, etc. The Copyright Act of 2022 provides for the entitlement of these rights throughout the lifetime of the owner and seventy years after his death.[ii]
Copyright is the right granted over the expression of intellectual property that is original to guarantee the entitlement of the owner to reproduce, communicate, adapt and translate the work at any time. The basis of determining the originality of work has not been on a stricto senso, it is based on the satisfaction of certain tests. For example, the Sweat and Brow Test of the UK recognises originality based on the skill, labour, time and energy that has been given, the Modicum of Creativity Test asserts the minimum degree of creativity, while the propounded Indian Skill and Judgment Test advocates that the exercise and creation such constitute a blend of both, that is, a flavour of minimum amount of creativity along with the standard of labour and skill. Further, the protection or acquisition of copyright is based on the idea-expression dichotomy which centres around the granting of a right to the expression of ideas in a visible form and not the ideas itself.
3. PATENT
A patent is basically a granted right that the government exclusively assigns to the inventor to enable the independent and undisturbed use, sale, or modify an invention over a specific period. The essence of this right has been to create a monopoly on the inventor's part while preventing others from commercially exploiting the product. Patent rights can be granted to an invention that is new or novelty that is done to an already existing product, provided it involves inventive steps and is capable of industrial application.
The Patent and Design Act, of 1971 regulates the granting of patent rights with the help of the Trademarks, Patents, and Designs Registry, Commercial Law Department, Federal Ministry of Industry, Trade and Investment.[iii]
When it comes to the grant of patent rights, care must be taken to exclude such inventions that are not in line with natural laws, public order, morality or something that can adversely impact humans, animals, or the environment. For example, the presentation of information is not an invention, and similarly, the topography of an integrated circuit cannot be considered an invention.
4. TRADE SECRETS
Trade Secrets are a very loose, yet, celebrated form of intellectual property rights that is valued, not only by individuals but large business establishments. It is a right that is granted to confidential information. Protecting this right has been backed by several responsibilities, care, and due diligence expected from its owner. Although there is no specific legal statute regulating trade secrets in Nigeria, its protection has been based on common law principles, judicial pronouncements, and also enabling provisions like the Freedom of Information Act 2011, Official Secret Act, Public Service Rules, etc.[iv]
Essentials of Trade Secrets
- The information must be a secret: This implies that it should not be available to the reach of all and sundry. Its accessibility should be restricted to defined calibres of people.
- Value: The value of the information that is to be granted this right must be of commercial importance. This means that it must foster competition, be uneasy to duplicate, and be capable of causing loss to the owner if unauthorisedly accessed.
- Due Diligence: The owner of this right must have taken some reasonable steps to enhance the security of the information such as confidential agreements.
Notwithstanding, trade secrets can also be transferred or licensed by its owner subject to certain terms and conditions.
CONCLUSION AND SUGGESTIONS
Intellectual Property Rights evolve with the creation of ideas, the expression of the same and the need to appreciate the efforts that have been put in individually or collectively by those that possess its ownership. The vastness of these rights has found its recognition in Nigeria and other countries of the World, including international organisations.
However, it is strongly suggested that there is a need to enact special laws for the regulation of trade secrets in Nigeria. In addition, the present laws, though not treated in detail, are running behind the changes of structures in the IP world, thus, there is a need for revisitation and amendment of these laws to meet current standards.
[i] Ifeyinwa Ufondu, A Guide to Trademark Registration in Nigeria, MONDAQ (2018).
[ii] Adeoluwa Ademola, Nigeria: Copyright and the Protection of Creatives, INVESTA INTERNATIONAL (2022).
[iii] Chukwunye Augusta Ojeih, Mary Arthur-Jolasinmi, The Nigerian Patent Law: A Statute Begging for
Amendment, RESEARCHGATE (2024).
[iv] C Nduke, Legal Status of Trade Secrets in Nigeria, SSRN (2024).
