Introduction
Intellectual Property (“IP”) can be likened to a coat of many colors; just as a coat of many colors is made up of various hues or colors, IP is made of various strands of human creativity and invention. Every color in this coat stands for the different forms of intellectual property: Copyrights that preserve artistic expressions, trade secrets that secure important business information, trademarks that protect brand identities, and patents that protect ground-breaking inventions. Intellectual property (IP) acts as a coat does, providing warmth and protection while also guaranteeing that the world's innovators and creators are acknowledged, valued, and paid for their singular contributions, thereby turning their ideas into valuable assets that fuel innovation, economic growth, and cultural enrichment. As ideas become the new currency in today's global marketplace, intellectual property is the colorful tapestry that binds innovators together.
Intellectual property is one of the most crucial elements needed to maintain the upper hand in the market in the fast-paced, fiercely competitive economic world of today.
It is a great notion to give credit or benefits to inventors, creators, and authors for their ideas, writings, and creations, considering the time, effort, and labor required to produce them.
What is Intellectual Property (IP)?
The World Intellectual Property Organization (WIPO) defines Intellectual Property (IP) to mean creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names, and images used in commerce.
Intellectual Property is a kind of property that is created by the human mind using his or her intellectual capability. It is a significant part of human existence and is very important for socio-economic growth and development.
The proprietary and exclusive rights that creators or owners have over their intellectual works or inventions are known as intellectual property rights. These rights provide the author control over how their work is used, allowing them to benefit financially or otherwise.
These rights are in various forms which include; Copyright, Trademark, Trade secrets, Patent and Industrial Designs.
1. Copyright
Copyright is a set of rights given by the law to the works of authorship. In other words, copyright is the right given to the creators of literary, dramatic, musical, and artistic works and producers of cinematographic films. The Copyright Act 2022, governs Copyright in Nigeria.
Subject to the provisions of the Nigerian Copyright Act 2022 (the “Act”), for a work to be eligible for copyright, it must fall under the six categories of works provided in Section 2 of the Act; and in the case of literary, musical or artistic works: (a) some effort must have been expended on making the work, to give it an original character; and (b) the work must be fixed in any medium of expression known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device.
Subject to the provisions of the Act, copyright shall commence when the work is created or made[1], hence, the copyright works do not require any formality[2] or registration but it is advisable for copyright owners to take part in the Nigerian Copyright Commission voluntary notification system, called the Nigerian Copyright e-Registration System (NCeRS), under which protected works may be registered to provide evidence of the possible date of creation of the work and other facts stated in the application form as this will be an added advantage in the event of a dispute.
Duration of Copyright Protection
The duration of copyright protection depends on the category of work;
In the case of literary, musical, or artistic works other than photographs, 70 years after the end of the year in which the author dies. For audiovisual works and photographs, 50 years after the end of the year in which the work was first published or created, for Sound recordings, 50 years after the end of the year in which the work was first made available to the public or 50 years after the work was created, and for Broadcast, 50 years after the end of the year in which the broadcast first took place. In the case of works of government, state authorities, and international bodies, 50 years after the end of the year in which the work was first created or first published[3].
2. Trademark
A trademark is a distinctive sign, which identifies certain goods or services as those produced or provided by a specific person or enterprise. Trademarks may be one or a combination of words, letters, and numerals. It may also consist of drawings, symbols, three-dimensional signs such as the shape and packaging of goods, or colors used as distinguishing features.
Paragraph 69(b) of the Schedule to the Business Facilitation (Miscellaneous Provisions) Act, 2022 defines a trademark as:
(a) a mark used or proposed to be used in relation to goods or services for the purpose of indicating a connection between the goods or services and a person having the right either as proprietor or as a registered user to use the mark, whether with or without any indication of the identity of that person, and may include the shape of goods, their packaging, and combination of colors;
The main purpose of a trademark is to enable consumers to identify a product of a particular company to distinguish it from other identical or similar products provided by competitors. Consumers who are satisfied with a product are likely to buy or use the product again in the future, for this, they need to be able to distinguish easily between identical or similar products. For a mark to enjoy statutory protection in Nigeria, it must be registered in Nigeria.
The principal legislation regulating trademarks in Nigeria is the Trademarks Act (“the Act’’)
By the provisions of the Act, the proprietor of a registered trademark is conferred with the exclusive right to use that trademark, and any unauthorized use of the registered trademark or a trademark similar to it will be deemed an infringement. To enforce his rights, the proprietor of a registered trademark may institute an action at the Federal High Court.
The court in FanMilk v. Mandarin Hotels, relying on sections 13(1) and (2) of the Trademark Act and the decision of the Supreme Court in Ferodo Limited & Anor v. Ibeto Industries Limited, stated two principles that would serve as a guide in determining whether a proposed trademark is offensive or not as follows: (a) Whether the proposed trademark is identical with a registered trademark belonging to a different proprietor? Or (b) Whether the proposed trademark nearly resembles a registered trademark as to be likely to deceive or cause confusion? the court stated that in the procedure of comparing trademarks, the question is not if a person is looking at two trademarks side by side, whether there would be a possibility of confusion. The question is whether the person who sees the proposed trademark in the absence of the other trademark would be deceived and think that the trademark before him is the same as the other, of which he has a general recollection.
However, the owner of an unregistered trademark cannot bring an action for infringement under the Act. However, he can institute an action in passing off against an unauthorized user of his trademark. This action is based on the common law action of passing off.
Examples of trademarks are the Apple logo, the McDonald’s symbol, the tick symbol on any Nike Shoe, the Instagram Logo, Coca-Cola’s red and white logo, and so on.
Duration of Trademarks Protection
A trademark is registered for an initial period of seven years but can be renewed for further periods of fourteen years. To maintain the registration of a trademark, the proprietor is required to pay the prescribed renewal fee of N12,000 before the expiry of the initial term granted and any subsequent term. It is possible to renew a trademark up to three months before it is due for renewal and up to three months after the renewal deadline. A trademark can be removed from the Register of Trademarks for failure to pay the renewal fee within the prescribed period.
3. Patents
A patent is an exclusive right granted in respect of an invention, which may be a product or a process that provides a new and inventive way of doing something or offers a new and inventive technical solution to a problem[4]. It is a legal grant by a government that gives an inventor the exclusive right to preclude others from making, using, selling, importing, or distributing their invention without their consent for a fixed period, typically 20 years from the filing date of the patent application. It is important to note that a patent is territorial, that is, the fact that it is registered in a foreign country does not mean it is automatically protected in Nigeria.
The court with the jurisdiction to hear any matter relating to patents is the Federal High Court. The principal legislation regulating Patents in Nigeria is the Patents and Designs Act 1970 (“the Patents and Designs Act”). The Patents and Designs Act outlines the requirements for patentability, procedures for applying for a patent, rights granted to the patent holder, duration of patent protection, and provisions for registration and registration of industrial designs.
Duration of Patent Protection
Section 7 of the Patents and Designs Act provides that a patent shall remain in force for twenty (20) years from the date of filing the application. A renewal application is to be made annually during the 20-year duration of the patent, a patent shall lapse if the annual fees are not duly paid provided that a period of six months shall be allowed for the payment of the fees and if the fees and any surcharged are paid within that period, the patent shall continue as if the fees had been duly paid. Failure to renew a patent will result in the patent lapsing, and this lapse shall be registered and notified.
4. Trade secrets
Black’s law dictionary defines a trade secret as a formula, process, device, or other business information that is kept confidential to maintain an advantage over competitors; information - including a formula, pattern, compilation, program, device, method, technique, or process. Inventions like - scientific theories, food recipes, mathematical methods, and commercial methods cannot be patented. However, they can be protected as trade secrets.
Article 39 of Trade-related aspects of intellectual property rights (TRIPS) classified trade secret as undisclosed information that needs to be protected as long as such information: (i) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question; (ii) has commercial value because it is secret; and (iii) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.
According to the World Intellectual Property Organisation (WIPO), protecting Trade secrets will help to: (a) maintain and promote standards of commercial ethics and fair dealing; (b) provide an incentive for businesses to innovate by safeguarding the substantial time and capital invested to develop competitively advantageous innovations, both technical and commercial, and especially those that are not patentable or do not merit the cost of patenting; and (c) prevent competitors from using these innovations without having to shoulder the burden of costs or risks faced in developing the innovations
Trade secrets are not statutorily protected in Nigeria. As such, there is no procedural formality for the registration of trade secrets. Thus, unlike patents and trademarks that are registered for some time, a trade secret can be protected for an indefinite period, provided it is not disclosed to the public.
One major way through which entities have ensured the protection of their trade secrets in Nigeria is by entering non-compete and/or non-disclosure agreements with their employees and partners. However, the protection that is offered by the agreements is slim compared to the proper regime that legislation could have put in place.
In Koumoulis v. Leventis Motors Ltd, the Appellant who was in the employment by the Respondent and in the know of the Respondent's trade secret resigned and started working with the Respondent's competitor, Nigerian Technical Company Limited. After the Appellant left the Respondent, the Respondent found out that the business plan which constitutes their trade secret had been divulged and explored by, the Appellant's new employer, thereby leading to the loss of business opportunities. The undertaking in the Appellant's agreement with the Respondent provides that he will not for "one year undertake to carry on either alone or in partnership nor be employed or interested directly or indirectly in any capacity whatever in the business of Merchants Engineers or any other business carried on by the Company within a radius of fifty miles from any Trading Station in West Africa" was held to be valid. Accordingly, the Appellant was liable to the damages imposed by the Court for a breach of the Noncompete Clause and disclosure of the trade secret.
Examples of trade secrets include; the 1886 Coca-Cola Recipe, McDonald’s Big Mac Special Sauce, and so on.
5. Industrial Designs
Industrial design safeguards a product's final character and aesthetic worth rather than its practical or technical aspects. It differs from all functional and technical elements. An industrial design consists of three-dimensional features, such as the shape of a product, two-dimensional features, such as ornamentation, patterns, lines, or color of a product; or a combination of one or more such features.
The Patent and Designs Act protects industrial designs in Nigeria.
Subject to this Act, registration of an Industrial design shall be effective in the first instance for five years from the date of the application for registration, and on payment of the prescribed fee may be renewed for two further consecutive periods of five years.
The term of protection under Industrial Design laws is generally five years, with the possibility of two further periods of renewal, giving 15 years of maximum total protection. Generally, Industrial Design protection is limited to the country in which protection is granted.
Conclusion
Intellectual Property and its various “colors”, is an important tool for promoting innovation and protecting the labour of creativity. It serves as a bridge between innovators or creators and the business environment, ensuring that the creativity is both rewarded and shared for the greater good.
Having a clear and detailed understanding of the numerous forms of IP is a crucial element needed to maintain the upper hand in the fiercely competitive economic world of today. This understanding not only enables creators to safeguard their work but also assists them in avoiding infringement on the rights of others because Ignorantia juris non excusat (Ignorance of the law is not an excuse). By doing this, IP will continue to contribute to the advancement of society.
REFERENCES
Legislations
- Copyrights Act 2022
- Business facilitation (miscellaneous provisions) act
- World Intellectual Property Organization
- Patent and Designs Act
Cases
- Fan milk International A/S v. Mandarin Oriental Services BV (2022) Suit No. FHC/ABJ/CS/791/2020
- Koumoulis v. Leventis Motors Ltd (1973) All NLR 789
Articles
- AELEX (2021). Guidebook on Intellectual Property in Nigeria. https://www.aelex.com/wp-content/uploads/2021/06/GUIDEBOOK-ON-INTELLECTUAL-PROPERTY-IN-NIGERIA-.pdf, accessed August 26, 2024.
- Resolution Law Firm (2020). Patent Law and Right of a Patent in Nigeria. https://www.resolutionlawng.com/patents-law-in-nigeria/, accessed August 26, 2024.
- AELEX (2022). Famous and well-known marks action: AELEX successfully defends Mandarin. https://www.aelex.com/famous-and-well-known-marks-action-aelex-successfully-defends-mandarin/,accessed August 26, 2024.
[1] Section 18 of the Copyright Act 2022.
[2] Section 4 of the Copyright Act 2022.
[3] Section 19(1) of the Copyright Act 2022.
[4] Definition by World International Protection Organisation
