The Impact of Intellectual Property Law in the Economic Development of Nigeria

1.0 Introduction

In both public and private universities in Nigeria and in the various Faculties and Colleges of Law of these universities intellectual property law is usually a course resident in the Business or Commercial law departments of these Faculties and Colleges and this underscores its economic characteristics. This conclusion is further supported by a consideration of other courses that intellectual property law keeps company with in the business and or commercial law departments, such as the following: company law, employment law, law of banking and insurance, law of contract, commercial law, law of taxation and so on.

This phenomenon is not unconnected with the justified belief that intellectual property law and its branches is essentially economic and commercial in nature.

Intellectual property constitutes a significant subject which deals with the protection of creative and inventive works emanating from the exertions of the mental faculty. And because of its huge economic potentials, a no mean attention has been directed at developing, and advancing both the legal and administrative frameworks for interrogating intellectual property at international, regional and national jurisdictions.

Intellectual property law is in a nutshell, the legal rules and principles relating to and guiding the subject matter of intellectual property. It is a set of related legal rules that are intended to protect the products of human ingenuity, that is, intangible ideas, words, sounds, and it consists of two main branches as follows: Copyright on the one part; and Industrial property, mainly in Trademarks, Inventions (Patents) and Industrial designs.

It is to be expected that the subject matter of Intellectual property which comprises “legal rights which result from intellectual activity in the industrial, scientific, literary and

artistic fields, and “the legal rights which may be asserted in respect of the product of the human intellect”, “that area of the law which concerns legal rights associated with creative effort or commercial reputation and goodwill”, and “a branch of the law which protects some of the finer manifestations of human achievement…”¹ will, if its legal and institutional frameworks are properly developed and harnessed, cannot but impact positively on the economy of any such country taking appropriate steps to develop its intellectual property architecture.

The robust economic nature of the subject matter of intellectual property itself is made manifest in how the various countries of the world have embraced knowledge, skills and other results of intellectual activity as a tool in the fostering of the growth of their economy. Thus, effective intellectual property management is employed as a very important part of the development strategy of countries.

Intellectual property protection is not a new area of Law as the earliest attempts at enacting Laws on it dates back to the 19^th Century. There is no debate about the added value of Intellectual property to the economy and individuals lives. Intellectual property rights have a vital role in growing the economies of countries all over the world. Various studies have shown that Intellectual intensive Industries and Businesses report better and higher growth, income and development than other industries.

2.0 Economic objectives of intellectual property law

There are two central economic objectives of any system of intellectual property protection. The first is to promote investments in knowledge creation and business innovation by establishing exclusive rights to use and sell newly developed technologies,

goods, and services. In the absence of such rights, economically valuable information could be appropriated without compensation by competitive rivals. Firms would be less willing to incur the costs of investing in research and commercialization activities. The second goal is to promote widespread dissemination of new knowledge by encouraging (or requiring) rights holders to place their inventions and ideas on the market.²

Technology and knowledge have contributed greatly to the economic growth of countries like the United Kingdom, USA, France, Japan, Brazil, India, Russia, China and many more. Thus, it is clear that Intellectual property protection has a huge influence on the financial improvement of a nation.

3.0 The synergy between Intellectual Property and Economic Development

The Intellectual property intensive industry of Nigeria keeps booming by each passing day and this has a staggering effect on the Nigerian economy. According to PwC Global entertainment industry, Nollywood which is the nation’s movie industry, is said to be one of the world’s fastest growing creative industries in the world. The industry contributed about $1.8 billion (730 billion naira) to the country’s 2020 GDP.³ The speaker of the house of Representatives, Femi Gbajabiamila, at a Two-day Leadership Master class training hat held in April 2021, said that the Nollywood film industry contributed 2.3% to the nation’s Gross Domestic Product (GDP). The Arts, Entertainment and Recreation sector of Nigeria also boosted the growth of the nation’s GDP by 2.39% in year 2021.⁴

Furthermore, other countries including the G7 countries, have also recognized a nexus between Intellectual property and their economic development. Thus, for example, the intellectual property intensive industry of the United States accounts for 38% of the county’s GDP, 52% of merchandise exports, 27.9% of million jobs and 46% of wage premiums.⁵

Intellectual property fosters economic growth through the following means:

(a) Promoting innovation by providing exclusive rights to and protecting the interest of the creator, providing incentives to invent and create and to produce socially desirable new innovations. In the words of Abraham Lincoln, the patent system “added the fuel of interest to the fire of genius in the discovery and production of new and useful things.”6 This also applies to other branches of Intellectual property;
(b) Protecting innovators from unauthorised copying, forbidding the exploitation or misuse of the property without the permission of the creator;
(c) Creating a market for inventions, creating platforms for financial investments, supporting start-up liquidity and growth and enabling a more efficient market for technology transfer and trading in technology and ideas;
(d) Facilitating vertical specialization in technology markets; and
(e) Supporting licensing-based technology business models.

The combined effect of all the above-mentioned leads to economic development and growth. Thus, a country with higher rate of technological growth is more likely to experience a higher standard of living than those of countries without much growth.

As much as Intellectual property law has its positive impact, there is also an adverse side to it. Thus, the impact of Intellectual property can be classified as positive or negative.

4.0 The Benefits of Intellectual Property Laws to the Economy

The business sectors and industries that depend on intellectual property Law represent an important and growing part of every modern economy, particularly as these economies advance from dependence on agricultural, mineral and low value- added manufacturing to higher-value products and services. Intellectual-property based sectors in both developed and developing countries are substantial drivers of GDP and

employment growth.⁷ The following are means through which Intellectual property Laws are of benefit to the economy.

4.1 Attraction of Foreign Direct Investment and provision of the necessary conditions for

Effective protection of intellectual property rights attracts inward foreign direct investment in various countries. The Organisation for Economic Co-operation and Development has conducted various extensive data survey whose results showed a positive correlation between the strength of Intellectual property law/rights patents, trademarks and copyright and Foreign direct investment. Economists discovered that a 1% increase in a country’s patent protection correlates to a 2.8% increase in foreign direct investment, and a 1%improvement in trademark and copyright protection increases Foreign Direct Investment by 3.8% and 6.8% respectively.⁸ Thus, weak Intellectual property protection will prevent investment in various sectors of the economy thereby leading to stunted or redundancy in the economy and may also negatively impact the country’s investment climate.

4.2 Fostering of Research and Development in the country

Free riding has a negative effect on innovations. Studies have shown that there is a tendency for individuals and industries to under invest in Research and Development in the absence of effective Intellectual Property laws. This is because these creative works will not be defended from free riders. This implies that individuals and industries that do not fully recover their investments are dissuaded from engaging in Research and Development due to the activities of free riders. The Organisation for Economic Co-operation and Development also discovered that a 1% increase in the strength of patent protection in developing countries correlates to a

nearly 1% increase in domestic research and development. Also, increase in trademark and copyright protection correlates to a 1.4% and a 3.3% increase in domestic research and development, respectively.⁹ Intellectual property Laws that are effective prevents this by reassuring these individuals and industries that their creations are free from the antics of cheats and free riders.

4.3 Intellectual Property Laws attracts venture-capital investment

Intellectual property protection attracts Venture-capital investment in Research and development and for the commercialization of innovative products and services. It aids firms or individuals in getting funding from investors as venture-capitalist.

4.4 Intellectual property rights could play a significant role in encouraging innovation, product development, and technical change

By protection of intellectual property rights, individuals and firms are motivated to create more, innovate and improve existing innovations. This is a win-win situation in that the state benefits economically, while the individuals are rewarded by their interest in the creation being protected. The combined effect of these innovations is critical for economic growth and productivity activity. For example, then protection of utility models has been shown to improve productivity in countries with lagging technologies such as Brazil and Phillipine. It has been concluded that Utility models were an important source of technical change in Japan. Protection also adds value to these innovations.

4.5 Intellectual property rights also could stimulate acquisition and dissemination of new information

Protection of Intellectual property rights affords firms confidence that they face limited threats of uncompensated misappropriation. This certainty could induce them to trade and license their technologies and products more readily, enhancing

their diffusion into the economy.

4.6 Facilitation of transfer of technology

Intellectual property rights help in increasing innovation and technology diffusion.

Technology transfer is the process of disseminating technology from the owner of the intellectual property to another. Technology transfer ensures that new scientific and technological developments are easily accessible by a broader range of users who can then exploit the said developments and make new bye-products from it. The advances in technology furthers the growth and development of the economy at large, making the public the ultimate beneficiary of these transfers and advancements.

Thus, technology transfer is critical for nations as it promotes economic progress and prosperity. Therefore, effective Intellectual property laws will help protect inventor’s interest and maximize inventor’s incentive for the particular technology.

Furthermore, effective intellectual property laws help developing countries access foreign technology.

5.0 Negative Impact of Intellectual Property Laws on Economic Development.

Of a truth, Intellectual property laws is capable of fostering economic growth and development, it may however, have an adverse effect on the economy as well. These laws might also raise difficulties on the economy. Below are possible negative impacts that Intellectual property laws could have on the economy:

5.1 Monopoly

Intellectual property laws support monopoly. This creates barriers preventing others from using the innovation thereby allowing the inventor to charge prices which are times outrageous since consumers will have no other or limited options. Studies have shown that where intellectual property laws are in place, there tends to be monopoly of the market.

5.2 Absence of competition

Competition is the most important factor for the development of an economy. This serves as a form of check and balance on products, services and their prices. It also ensures that consumers are satisfied better by having a variety of options to pick from. It also helps to keep industries in their toes to provide products and services of better quality. However, Intellectual property laws may serve as an hinderance to this as it provides security to the creators and inventors.

5.3 Diminished access to Technology

A fundamental concern raised about intellectual property protection is that their exploitation could result in diminished access to technological information. This can be by inventors or creators raising imitation costs and placing considerable pressures on imitative enterprises in developing economies. Thus, a paramount worry for developing countries is that protection of intellectual property could result in higher costs for the use of new technologies.

5.4 Increased cost of administration and enforcement

Cost associated with administration and enforcement of Intellectual property Laws are expensive and may be burdensome to the government of developing countries.

5.5 Economic and social costs

Effective Intellectual property laws might also raise difficult economic and social costs. Developing economies could experience net welfare losses in the short run because many of the costs of protection could emerge earlier than the potential benefits.

6.0 Summary

In summary, policies which include strengthening of human capital and skill acquisition, promotion of flexibility in enterprises and organizations, ensuring a strong degree of competition in domestic markets, and development of a transparent, non- discriminatory, and effective competition regime will all aid in ensuring intellectual property Laws has maximum positive on the Nigerian economy.

This is supported by statistics that have shown that Intellectual properties crimes cost nations’ economies a huge amount. In the United States, intellectual property crimes cost the countries’ economy 180billion dollars from theft of trade secrets, 18 billion dollars from pirated U.S software and 29 billion dollars in displaced legitimate sales due to counterfeit and pirated goods.¹⁰

7.0 Conclusion

In conclusion, the absence of effective intellectual property laws deprives a country of huge revenues that could boost the development of the country. This is supported by statistics that have shown that Intellectual properties crimes deprives many countries’ economies huge amounts. The president of Nigeria disclosed at the inauguration of Falcon Eye Project, Nigerian Navy’s Strategic Maritime Surveillance System, in July, 2021, that the country loses about 26.3 billion dollars annually to various forms of criminality particularly Piracy and sea robbery. This emphasises the adverse effect that lack of effective intellectual property laws has on the economy. In the United States, intellectual property crimes cost the country’s economy 180billion dollars from theft of trade secrets, 18 billion dollars from pirated U.S software and 29 billion dollars in displaced legitimate sales due to counterfeit and pirated goods.¹¹

However, that a Law has a few disadvantages does not mean it is to be stashed away and neglected by the society as this would deprive society of the numerous benefits it could fetch the economy. Although, Intellectual property Laws may have a negative impact on an economy in certain instances, it is still very much clear and

obvious that its pros outweigh its cons

Furthermore, the negative impacts can be worked on to the barest minimum by the following ways:

8.0 Recommendations

8.1 Imperatives of a review and update of extant Intellectual Property Laws

It is recommended and advised that to get the maximum benefit afforded by Intellectual property to the economy, existing laws be reviewed, amended and updated. This will help for more economic activity and interest in the economy by both external and internal investors

8.2 Implementation of procompetitive standards

It is suggested that standards should be established that encourage learning and follow up on innovation within the intellectual property system/ domain.

8.3 Enhance capacities to develop and use intellectual properties:

it is imperative that the country works on enhancing and fostering capacities and abilities to develop and use intellectual properties. This ca be by making trainings and education in this respect available and affordable.

8.4 Promote competitive markets:

one of the important determinants of the success of an intellectual property protection regime is the competitive nature of the markets within which it operates. This is because competitive markets have been shown to reduce or prevent monopoly in the economy. This will be aided by development of competition policies as well.

All of the above-mentioned benefits will not be maximized in the absence of effective intellectual property rights and administration. It is therefore imperative that necessary steps are taken to put this in order in the Nigerian setting.

Furthermore, it is advised that the Nigerian government works in light of the

aforementioned to better access the benefits afforded an economy by effective intellectual property laws as this could generate more international economic activity and greater indigenous innovations.

In addition, relevant treaties should be ratified and enacted into our National Laws as soon as possible by the Nigeran legislative house. There should also be improvement on government policies especially in commercialization of invention where financial difficulty is encountered as well as encouragement of research and development by the Federal Government through different means possible¹².

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¹Oyewunmi AdejokeO, Nigerian Law of Intellectual Property, University of Lagos Press and Bookshop Ltd, (2015) pp.2-3. Learned Author was considering the various definitions of Intellectual Property from the many viewpoints by WIPO, Intellectual Property Handbook, (2^nd Ed. WIPO Publication No 489 (E) Geneva, 2004); Jeremy Philips and Alison Firth, Introduction to Intellectual Property Law,(4^th Ed., London: Butterworth, 2001)p.4;Bainbridge, David, Intellectual Property (6^thEd., Essex: Pearson 2007) 3; and Cornish William and Llewellyn David, Cornish & Llewellyn’s Intellectual Property: Patents, Copyright, Trademarks and Allied Rights (6^thEd., London: Sweetand Maxwell,2003) 3.

²Keith E. Maskus, Intellectual Property Rights and Economic Development, 32Case W. Res. J. Int’lL.471 (2000) Available at:https://scholarlycommons.law.case.edu/jil/vol32/iss3/4

³https://www.trade.gov/country-commercial-guides/nigeria-media-and-entertainment

⁴https://www.nigerianstat.gov.ng/

⁵https://www.state.gov/Intellctual-property-enforcement/

⁶Nicolay and Hay 1905, 113.

⁷https://iccwbo.org/content/uploads/sites/3/2011/02/Intellectual-Property-Powerhouse-for-Innovation-and-Economic-Growth.pdf

8 “Promoting and protecting Intellectual Property in Nigeria”, pg 5, Business Action to Stop Counterfeiting and Piracy, available at https://iccwbo.org/content/uploads/sites/3/2017/01/Promoting-and-Protecting- Intellectual-Property-in-Nigeria.pdf

⁹“Promoting and protecting Intellectual Property in Nigeria”, pg5, Business Action to Stop Counterfeiting and Piracy, available at https://iccwbo.org/content/uploads/sites/3/2017/01/Promoting-and-Protecting-Intellectual-Property-in-Nigeria.pdf

¹⁰https://www.State.gov/Intellectual-property-enforcement/

¹¹https://www.State.gov/Intellectual-property-enforcement/

¹²https://www.mondaq.com/nigeria/trademark/82368/intellectual-property-a-tool-for-economic-growth-in-nigeria

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About the Author

Land Matters in Nigeria

How to register your land, make land agreement, make land papers, or get Certificate of Occupancy (C of O)? Hang on!

Do you know it’s not only when someone acquire a land or landed property forcefully that he can lose it to the government or other people? Yes! Your property can be confiscated when you have not done the necessary registration of the land and other requirements that can declare you as the legal owner of the land.

Whatever you want to do about that land, contact our recommended lawyer today. Or call 08133354407

How then do you protect your land? Follow this article to the end and see tips that will help you protect your land.

What is land registration?

Land registration simply means a system by which all issues that has to do with ownership, possession and transactions made in purchasing a land is recorded with the concerned authority. It provides doubtless evidence that you are the rightful and legal owner of the land whenever the need arises.

Land registration saves you the stress of having to deal with threat, disturbance or dispute in the future. It’s therefore imperative to involve a legal practitioner from the start so you can be guided through the process.

Here are five major steps involved in land registration:

1. Mutual agreement: There must be an agreement between the vendor and the purchaser . This is usually called verbal contract.

2. Now, in respect to what has been agreed upon, a sale document must be prepared for proper record.

3. After the sale document is being prepared, stamp duty, consent fees, capital gains tax and registration fee has to be paid.

4. The deed is then forwarded to designated bodies for endorsement.

5. The final step is the transfer or change of ownership which can be best carried out through an irreversible power of an attorney.

Importance of land registration

1. It serves as proof of ownership

2. Getting your land registered qualifies you to be compensated when your land is acquired by the government. Possibly for public interest. In compliance with Part V of the Land Use Act, LFN 2004.

3. It saves you from fraudulent sales.

4. It protects your land from unauthorized occupier.

Land Registry in Nigeria

Land registry is a sensitive government agency that deals anything that has to do with land matters.

A land registry is established in every state under the land registration law. That is, each state has it own land registry. This implies that there’s always a land registry near to you.

Whatever you want to do about that land, contact our recommended lawyer today. Or call 08133354407

Locations of land registry offices in some states in Nigeria:

i. Federal land registry Ikoyi, Lagos State
ii. Ministry of land housing and survey Ibadan, oyo state
iii. EdoGIS Benin city
Iv. Kano state bureau for land management. Kano
v. Ministry of land and hosing Calabar, Cross river state
vi. Ministry of Lands and Physical Planning. Abere, Osun State. etc

It’s advisable you go to a land registry near to you to verify the uniqueness of the documents of the land you are about to buy. However, doing this can be a little bit stressful but getting a legal assistance will make this process much more easier. Get a trusted lawyer.

Duties of the land registry include the following:

1. Proper storage of all land transaction records.

2. Deeds registration and court judgement.

3. They register the instruments that affects land.

4. Administration of the Electronic Document Management System.

Land Agreement in Nigeria

Land agreement is the formal contract between the person who decides to sell and the one who agrees to buy a land or landed property under specific terms and conditions. Simply put, this is called ”Sale Agreement“.

Land sale Agreement must contain the following:

1. The full details of the assignor and assignee. Such as; addresses, qualifications, occupations , names etc. This is known as “parties clause”.

Note: parties involved in sale agreement may not necessarily be two individuals. They may be more than two people.

2. Adequate explanation on how vendor became the owner of the land he is about sell must be included. This is called the “Recital clause“.

3. The “Consideration clause” must be mentioned in the agreement i.e the payment method agreed on by the vendor and purchaser, either to be paid in installments or at once.

4. The “Covenant clause” i.e the future responsibilities of each parties in regards to the land about to be purchased must be included. Meaning that, the vendor’s obligation to indemnify the buyer against all interruption or disturbance which may arise in the future must be mentioned and also the buyer’s promise to abide by the spelled out terms must be properly written in the sale agreement

5. In a case whereby one party defaults under any terms agreed upon, the contract can be terminated. This is called the “Termination clause“.

Land Transfer

Land transfer in Nigeria is the system in which the legal rights to a land already sold out are transferred from one person to another.

The process of transfer of land ownership is called land mutation which means change of property title. This requires the intervention of a lawyer in order to avoid future disturbance or dispute as touching the ownership of the property.

The primary document of land ownership transfer from one party to the other is called “Deed of Assignment“.

Deed of Assignment in Nigeria

Deeds of Assignment is a legal agreement to transfer a property from the current owner to someone else. I.e. if a land has been sold out to another person, there should be a deed of assignment or conveyance pronouncing the purchaser as the legal owner of the land.

Importance of Deeds of Assignments:

1. It is essential in proving the legitimacy of the land.

2. It binds the legality of transactions made.

3. It declares you as the legal owner of the land in case someone else attempt to claim its ownership in future.

4. It serves as a proof that all due diligence have been completed.

Who prepares the Deed of Assignment?

In Nigeria, a Deed of Assignment should be prepared by a lawyer. And it is usually done within four (4) to six(6) weeks.

What is a deed of assignment made of?

1. The assignor and the assignee’s names and addresses.

2. A statement that all ownership rights to the land are transferred.

3. Description of the land.

4. Signature of the assignor and the assignee(s).

A deed of assignment must be recorded with the state government for its execution according to the provision of the Land Use Act, LFN 2004.

Would you like to make a Deed of Assignment? Contact our recommended lawyer today. Or call 08133354407

Certificate of Occupancy

Certificate of occupancy is a title document issued by a local authority to landowners, which serves as legal proof that a house or building can be occupied according to the law.

The most important document to a landowner in Nigeria is the Certificate of occupancy.

Not getting a C of O as a landowner is very dangerous because it may cause you to lose the land or landed property. It’s important to note that a land without a C of O cannot be legally occupied and it can be seized by the government at any point in time.

Content of a C of O includes:

1. Number of the C of O
2. The file number
3. Details about the location of the property
4. Number of plot
5. Shape of the land
6. Date of transaction
7. Purpose of the land etc.

Benefits of having a C of O:

1. It helps to confirm whether the land is safe to be occupied.
2. The C of O can be accepted as collateral for bank loans.
3. It increases the value of one’s land particularly in Abuja.
4. It declares you as the rightful owner of the land.
5. It protects your land or landed property.

Would you like to get a Certificate of Occupancy? Contact our recommended lawyer today. Or call 08133354407

Land Document Verification

The degree at which you can claim ownership rights to a property is dependent on how certain you are about the authenticity of the property.

All matters concerning change in title or possession of land can be verified and recorded with the government.

How to verify the genuineness of land in Nigeria

1. Confirm the land excision: You must do a proper check to be sure the land has been legally released to the person who claims its ownership by the government gazette. Also, it helps you to be sure that this land is no longer under government acquisition.

2. Get a trusted surveyor: Don’t just rely on what the vendor’s surveyor tells you. Get a trusted surveyor who will make sure the coordinates picked on the survey plan matches the coordinates picked on the land.

3. Confirm the C of O: If the land already has a C of O, It is advisable that you take the C of O number to a land registry to confirm if it’s in their database.

4. Governor’s consent: lands with governor’s consent are always very expensive. You can imagine how tragic it would be to later realize you have been scammed. In order to avoid falling into the hands of fraudulent salers, here are three important people you must involved before buying any land in Nigeria

i. An analyst
ii. A lawyer
iii. A surveyor

However, credibility is key In choosing the lawyer, surveyor or a real estate analyst that will work with you.

You can also check the authenticity of the documents used to process the title.

1. The CTC (Certified True Copy of root title)

2. Instruments of transfer

3. Land photographs with date

4. Letter of authority by applicants.

Conclusion

Purchasing a land in Nigeria is a very delicate process that requires the involvement of experts like a lawyer who will ensure that your interest as the vendor or purchaser of the land is secured and that all transactions made are legitimate.

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See also: CAC Registration in Nigeria

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Copyright in Nigeria

In the world of Intellectual Properties, copyrights are at the forefront of popular cognition, laying in rank with other widely known IPs like trademarks, patent, and trade secrets.

In simple parlance, an Intellectual Property (shortly called IP) is an intangible property; creation of the mind.

Intellectual Property rights are therefore legal provisions that seek to protect the sanctity of these properties by forestalling and restraining unauthorized exercises. Such unauthorized engagements, if and when they occur, are known as infringements. One of these intellectual proprietary rights is called Copyright.

As earlier adduced, copyright is a vast Intellectual Property right and can thus overlap with other rights in certain spheres. For instance, a logo may be protectable by Copyright and Trademark law, or a computer programme with Copyright or Patent.

In Nigeria, copyright is statutorily regulated by the provisions of the Nigerian Copyright Act of 1988 (hereinafter referred to as CA or ‘the act’).¹ For the administration of copyright in the country, the act provides for the establishment of the Nigerian Copyright Commission (hereinafter referred to as NCC or ‘the commission’).²

According to the CA, a work is eligible for copyright protection if it is a literal, musical, or an artistic work, cinematography film, sound recording or broadcast. Literal, musical, and artistic works must be in a fixed medium of expression and possess originality. A work shall not be eligible if it was made as a model or pattern to be multiplied by an industrial process.³ Copyright protection also extends to other related rights like performer’s right and expressions of folklore.

Ownership of Copyright

The copyright of a work is vested in the author. And in the case of joint authorship, where the contribution of one author is inseparable from that of another, both or all authors involved shall be co-owners of the copyright.⁴

In case of a work by an employee made as commissioned in the course of their employment, like a writer for a newspaper, the copyright shall belong to the proprietor, unless otherwise provided by an agreement. If not so commissioned, or commissioned by someone who is not the author’s employer, the copyright shall belong to the author.⁵

Acquisition of Copyright

With consideration of its status of eligibility, copyright shall be conferred on a work whose author is a citizen of or domiciled in Nigeria, or a body corporate incorporated under the laws of Nigeria.

Alternatively, the author may be a citizen or be domiciled in a country, or a body corporate incorporated in such country, that is a party to an obligation in a treaty or other international agreement to which Nigeria is a party. Additionally, the work as a literal, musical or artistic creation must be first published in any of these countries.⁶

Registration of Copyright

Registration of copyright is not required by the CA. In other words, eligible works are automatically copyrighted without any form of official registration. However, the NCC has a database for owners of copyrights to register them with the commission.⁷ This would suffice as a good tool for proving ownership.

Duration of Copyright Protection

The duration of the subsistence of copyright protection in a work depends on the type of the work. For literary, musical and artistic works, copyright subsist from when the work is made still seventy (70) years after the end of the year in which the author dies. In case of works with joint authorship, the death of the author refers to the death of the author who dies last.

As for cinematography films, photographs, and sound recordings, copyright shall subsist from when the work was made still fifty (50) years after the end of the year in which it was first published. And lastly, copyright shall subsist in a broadcast still after fifty (50) years after the end of the year in which the broadcast first took place.⁸

Transmission of Copyright

The owner of a copyright may assign his rights or license some acts to be done to the work. In assignment, copyright is transmissible by testamentary disposition or operation of law, as a movable property.⁹

Any assignment of copyright or exclusive license to do an act must be in writing for it to be valid. A non-exclusive license may, however, be oral or inferred from the conduct of the parties.

Copyrights of a work to be made in the future, or future rights which would emanate from an existing work, are transmissible by operation of law as movable property.¹⁰

Ancillary rights

Ancillary rights relating to Copyright in the Nigerian situation are Moral rights, Performer’s right and the Protection afforded to expressions of folklore. Moral rights protect the author from derogatory actions, including mutilation of his work, that may be disparaging to his reputation or honour. Performer’s right protect works from being publicly performed, and expressions of folklore are also protected from being reproduced outside their traditional structures.¹¹

Collecting Bodies

A collecting body represents a substantial number of owners of copyrights in a category of work. It is formed to manage the rights of its members, issue licenses and collect royalties. A notable example of a collecting body is the defunct Copyright Society of Nigeria (COSON).¹²

COSON was licensed to manage the copyright of artists in musical works and sound recordings. It has now been replaced with the Music Copyright Society of Nigeria (“MCSN”). When a collecting body is effective in the management of the rights licensed to it, the commission shall not approve another society in respect to those rights.¹³

Infringement of Copyright

Among other causes, an infringement of copyright occurs when there is an unauthorized exercise of a copyrighted work. Whether by way of reproduction, distribution, mutilation, or public performance, any unauthorized dealing with a copyrighted material, against such copyright, amounts to infringements.¹⁴ A person who commits such infringement may be called an infringer.

A secondary infringer is one who aids or abets or actively participates in an infringement.

Action on Infringement of Copyright

An action on infringement may be brought by the owner of the copyright, an assignee or an exclusive licensee to the Federal High Court exercising jurisdiction where the infringement occurred. Such reliefs by way of injunction or damages shall be available to the plaintiff.¹⁵

Also, an action relating to infringement of copyright may be civil or criminal. A civil action may arise between two parties. On the other hand, the NCC may institute a criminal action against the infringer. Notably, a civil and criminal action may run simultaneously on the same fact of infringement, and the criminal action may subsist even if the parties had settled the civil claim.¹⁶

Defense to Infringement

A claim of infringement may be defended on the ground of lack of knowledge. This is when the defendant had no reasonable reason to believe that the infringing work is an infringing copy of the original work.¹⁷

Also, acts of fair dealing for the purposes of research, private use, criticism or review may not amount to infringement of copyright. Moreover, ‘incidental occurrence’ is a valid defense also.

Judicial reliefs in actions of Infringement

The court, in a case of copyright infringement, might grant injunctions or damages. As ex parte, a court may order an interim injunction to prevent an act of infringement until the case is determined. A permanent injunction may be granted at the end of the case in favour of a party.

Also, the court may give an Anton Piller order to restrain a party from destroying evidences of infringement. In Oladipo Yemitan v. The Daily Times (Nig.) Limited,¹⁸ the plaintiff claimed his work was reproduced verbatim by the unauthorized defendant. The court awarded damages of #10,000 and #15,000 as exemplary damages against the defendant.

References

1Cap. C28 LFN 2004.

2Section 34, Copyright Act 1988

3Section 1, Copyright Act 1988

4Section 2 (1), (4), 51 – “work of joint authorship”

5Section 10, Copyright Act 1988

6Section 2, 5, Copyright Act 1988

7https://www.eregistration.copyright.gov.ng/ – confirmed on 19^th May, 2022

8First Schedule (Terms of Copyright) Copyright Act 1988

9Section 11 (1), Copyright Act 1988

10Section 11 (7), Copyright Act 1988

11The International Comparative Legal Guide to: Copyright 2017 (3rd edition) Nigeria. S. P. A. Ajibade & Co.

John C. Onyido, Yetunde Okojie.

12Nigeria: Federal High Court rules that COSON’s operating licence has lapsed  – Music in Africa(https://www.musicinafrica.net/magazine/nigeria-federal-high-court-rules-cosons-operating-licence-has-lapsed, retrieved on 19/5/2022)

13Section 39 (3), Copyright Act 1988

14See section 15, Copyright Act 1988

15Section 16 (1), Copyright Act 1988

16See Nigerian Copyright Commission vs. MTN Nigeria Communications Limited. Suit No. FHC/ABJ/CR/379/15

17Section 20, Copyright Act 1988

18[1977-1989] 2 IPLR 141

Fintech and Data Privacy Invasion: Legal Implications (– Sokoloan as a Case Study)

The borrower is servant to the lender

Abstract

Today, a lot of people tend to borrow money to make ends meet and for unexpected expenses and this is most times as a result of non-payment of salaries, unemployment, high living standards, etc.

Although, traditional banking makes acquiring a loan hard with its paper work, checking the credit-worthiness of potential borrowers, requirement of a guarantor and collateral, the Fintech space has taken a new dive from this traditional method for obtaining a loan to make the process less stressful and more attractive by the removal of collateral for borrowers and the convenience of obtaining loans with just a few clicks on your mobile phone amongst others.

Unfortunately, this new development may have seemed rosy in its early stage, but has now become people’s worst mistake owing to its grave disadvantages such as infringement of data privacy.

This paper seeks to succinctly give a brief overview of Fintech, data privacy and its importance and take a look at the credit tech which involves loan sharks who have used their power over borrowers to bring nothing but shame upon them with their own data, specific reference to the Soko Loan app.

Key words: FINTECH, LOAN APPS, SOKO LOAN, DATA PRIVACY.

Introduction

Technology is growing and cutting across various sectors in the country such as education, the legal profession and most especially the financial space. Technology is playing a pivotal role in the finance space, helping with financial intelligence, financial inclusion, savings, investments etc.

This development is what is popularly known as “Fintech”, it is the combination of advanced technology and finance to better the lives of the citizenry by making financial transactions more convenient than the traditional way.

Financial technology (Fintech) is used to describe new technology that seeks to improve and automate the delivery and use of financial services. At its core, fintech is utilized to help companies, business owners and consumers better manage their financial operations, processes, and lives by utilizing specialized software and algorithms that are used on computers and, increasingly, smart phones. Fintech, the word, is a combination of “financial and technology”.((https://www.investopedia.com/terms/f/fintech.asp accessed on 26th of March, 2022))

There are various Fintech sectors such as Credit tech for loans, Insure tech, payment tech for remittance and also wealth tech for automated savings and investment, but for the sake of this article our focus will be on credit tech.

Credit tech is a technology company that provides loan facilities in a faster and more customized way to suit the current low income amidst Nigerians. Some of these companies include; renmoney, pagefinancials, branch, soko loan, fair money and a host of others.

Data Privacy

Data Privacy is the protection of personal data from those who should not have access to it and the ability of individuals to determine who can access their personal information. It generally means the ability of a person to determine for themselves when, how and to what extent personal information about them is shared with or communicated to others.((https://www.cloudflare.com/en-gb/learning/privacy/what-is-data-privacy/ accessed on the 26th of March, 2022.))

This personal data includes name, address, email address, bank details. With the rise of internet activities, the importance of data privacy has increased as most websites and apps, especially fintech apps which require very private information like BVN, phone number, email address etc.

The government envisaging the importance of data privacy in the internet space made provision for this right as seen in Section 37 of the 1999 Constitution of the Federal Republic of Nigeria which states, “The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.”

Asides the aforementioned provision of the Constitution there is no specific statute or law on data privacy, however, the NITDA((National Information Technology Development Agency)) which is a federal agency established by the NITDA Act responsible for the development, regulation and advice on information technology in the country brought to life the NDPR [Nigeria Data Protection Regulations] 2019 to promote data privacy and curb data privacy breach in the country by sanctioning defaulters.

Soko Loan – Case Study

Soko Lending Limited [Soko loan app] is an online credit tech company that provides short-term loans in Nigeria to help cover unexpected expenses and urgent cash needs without collateral.((www.sokoloan.com))

It offers a seamless process by just downloading the application on one’s device and activating a direct debit in the company’s favor and gains access to the borrower’s contacts.

The fact that this loan company and most, if not all fintech lending companies do not ask for collateral before approving a loan application is what attracts Nigerians to it and takes them away from traditional bank loans. These loan apps take higher, ridiculous interest than our banks for an even shorter period, imagine asking for a 50% interest in 7 days, they clearly already set them up not to pay back.

There’s nothing for these online lenders to hold on to offset debt in cases of non-payment by defaulters since there is no collateral thus they resort to the unhealthy and illegal means of using customers private information against them by sending defamatory messages to everyone on their contact lists.

For better visualiation, this is a message sent by them to one of their borrowers contacts “This is to inform the general public that Mr. Ade with 080xxxisachronic debtor and a fraudster. He is on the run after duping a lending money company. You are advised to stay clear from him”.

Following several launched complaints at the agency, in November 2021 the NITDA fined Soko loan to the tune of Ten million naira [N10,000,000] for breach of data privacy due to their unhealthy and illegal means of debt recovery.

The agency found them in violation of various sections in the NDPR of which includes Section 2.5 of the NDPR which makes it compulsory for every business to have and display a valid privacy policy if such business collects data to the targeted data subjects in an easy to understand manner.

Privacy Policy

Privacy Policy is a document that explains the type of personal information that your business collects through your website, mobile app or other means, it also informs your customers and users of their data privacy rights and the steps you take to protect their personal information, amongst other things.

Also, they were found In breach of Section 2.2 of same rule which makes provision for lawful processing of data i.e. when processing of data is deemed lawful for example the data subject consented, the processing is required for compliance with a legal obligation to which the controller is subject inter alia.((www.nitda.gov.ng))

It is my humble opinion that any of the so called loan sharks cannot find shelter under the umbrella of initial notice that they would send messages to third parties as Section 24.4 states no consent shall be sought, given or accepted in any circumstance that may engender direct or indirect propagation of atrocities, hate, violation, criminal acts and anti-social conducts, meaning they ought not to even seek such consent in the first instance and if the data subject offered they are mandated to refuse such offer as defamation is both a civil and criminal act.

It is unfortunate that even after the fine imposed, in January of 2022 another victim of this unethical strategy although in another form took to social media to display an obituary poster made of him by SOKO LOAN due to non-payment of loan obtained.((https://www.lindaikejisblog.com/2022/1/customer-in-shock-after-a-loan-app-declared-him-dead-and-published- his-obituary-after-he-defaulted-on-payment-2.html accessed on March 31st, 2022.)) This company sends these messages to everyone on the contact list not caring the implications of their actions.

A lot of persons have cried out that they lost a friend, sister, husband due to these messages, it may mean nothing to them but is definitely harmful to the debtor. Being a debtor is not something anyone is proud about talk more of an alleged criminal which they paint some of them to be. It causes a lot of mental issues due to shock and what not.

Fortunately, the battle did not end there, on the 11th of March 2022, the Federal Competition and Consumer protection commission [FCCPC] and other regulators including the CBN, NITDA etc. took off to shut down locations of some of these notorious illegal lending companies in Lagos state.

It was discovered that they were not even registered with the Corporate Affairs commission neither did they obtain the requisite licenses to carry out the business of lending in Nigeria.

The reason for the raiding was due to the issue of breach of data privacy as a means to recover due loans and also the high interest rates. The loan companies shut down by the federal agencies included a familiar face Soko loan, alongside kash kash, easy credit etc. The FCCPC mentioned that efforts are being made to freeze the accounts used by the managers of the online money lenders, also it was just the beginning in due time they would fish out all other illegal money lenders.((https://www.google.com/amp/s/www.vanguardngr.com/2022/03/fccpc-raids-online-loan-sharks-in-lagos/amp/accessed on April))

Recommendation / Conclusion

The best way to tackle the issue of non-payment is a preliminary move of making a loan grant subject to collateral considering the fact that Nigerians have bad credit score. If that is not welcomed, then they take the prescribed means of debt recovery by the relevant extant law, in other words hire a lawyer versed in debt recovery to do the work, as simple as that.

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Written by Tariere Itoko

Tariere Itoko is an enthusiastic 300 level law student at Edo State University, Uzairue with great  interest in Fintech law, Intellectual property law and Banking and Finance.

Industrial Designs in Nigeria

Want to know about industrial design rights in Nigeria? Sit tight!

A lot goes into the production of goods and services. A lot in steps and processes. One major step in the production of an industrial product is the making of a design.

In simple parlance, a design is a sketch, drawing, etc., of what the product will look like before it is made. In other words, a design projects the frame, and display dimensions of a product.

In industries, from automobile to fashion, designs are of crucial importance. They usually carry heavy economic and reputative value. Fortunately, these are some of the key areas offered protection by intellectual properties like copyright, trademarks and patent.

Technically, according to the World Intellectual Property Organization (WIPO), an industrial design constitutes the ornamental aspect of an article. It may consist of three dimensional features, such as the shape of an article, or two dimensional features, such as patterns, lines or color.

In Nigeria, industrial designs are protected by the Patents and Designs Act 1970 (Cap P2 LFN 2004). Specifically, sections 12-22 of the Act contain provisions special to the protection of designs.

What can be an Industrial Design

Any combination of lines or colours or both, and any three-dimensional form, whether or not associated with colours, is an industrial design, if it is intended by the creator to be used as a model or pattern to be multiplied by industrial process and is not intended solely to obtain a technical result. – Section 12.

For a design to be registrable, it must be new. That it to say, it must not have been made available to the public before application for registration. However, a design is not public if it was only officially exhibited six month before its application for registration.

Additionally, a design that was communicated confidentially, or to someone who has an interest in it, will not be deemed as published.

In the case of Blank v. Footman, Pretty & Co. (1988) 5 R.P.C. 653, pages 460, 461, Blank, the proprietor of a design, showed it to Hummel before registering it. Hummel was a commission agent who had the sole right of selling Blank’s goods in England. It was held that Hummel, therefore, had an interest in the Design and thus the communication made to him must be regarded as confidential. And being confidential, it does not amount to publication.

The decision above was given judicial credence in the Supreme Court case of F.O. Ajibowo & Co. Ltd. v. Western Textiles Anor (1917-1976) 1, I.P.L.R. In this case, the disclosure of the design was made to the Plaintiffs/Respondents who had an interest in the manufacture of the design for the Defendants/Appellants. The Court, citing Blank’s case, held that there was no publication made.

Also, a design that is contrary to public order or morality cannot be registered.

In Ethylene Products & Lubricants Ltd. V. Delta Manufacturing Co. Ltd. (2003-2007) 5, I.P.L.R page 318, Abdullahi Mustapha, J. held thus, “Section 13 (1) & of (2) Patents and Designs Act reads: … it would be seen from the above provisions that an Industrial Design can only be registered if it is new and it is not contrary to public order and morality.”

Ownership of Design Rights

The right to registration of an industrial design is vested in the Statutory Creator, whether he is the true creator or not. A statutory creator is the first person to file an application for the registration, or claim foreign priority on the design.

When a statutory creator is not the true creator, the latter shall be entitled to be named as the true creator in the registration. This is a right that cannot be modified by contract. Moreover, if a supposed statutory creator files an application without the consent of the true creator, the rights in such registration shall be deemed to be transferred to the true creator.

Additionally, when an industrial design is created by an employee within the course of his employment, the rights in such creation shall be vested in the employer. This is also the case if the design was made in the course of a commissioned work.

However, an employee who makes a design not in the course of his employment but using the means of his employment, shall be entitled to fair remuneration. Or else, he can bring an action for enforcement.

Registration of Industrial Designs in Nigeria

Every application for registration of an industrial design shall be made to the Registrar. The registrar is in charge of the Trademarks, Patent and Design Registry. The registry is under the Commercial Law Department of the Ministry for Industry, Trade and Investment.

By powers conferred by the Act, the registrar shall examine every application to make sure it is in compliance with sections 13 (1) (b) and 15 of the Act. That is to say, the registrar shall check for whether the design is not contrary to public order or morality. And whether the necessary information like applicant’s full name and address, a specimen of the design, etc., are provided, as well as prescribed fee paid.

If the application does not comply with necessary requirements, the registrar shall reject the application. Any person grieved by the decision of the registrar may appeal to the Court.

Foreign Priority in Design Registration

Nigeria is a party to conventions and treaties relating to intellectual properties. For example, Nigeria is a signatory to the Patent Cooperation Treaty (PCT), in line with the Paris Convention for the Protection of Industrial Property (1883).

According to Section 27 of the Patents and Designs Act, the Minister may declare a country or countries as a convention country (ies) by an order in the Federal Gazette. When this is done, an application filed by a person in Nigeria who has earlier made the same application in a convention country shall be entitled to foreign priority.

In other words, the application filed in Nigeria shall be deemed to be filed as at the time the application was made in the other country. However, for such an application to enjoy foreign priority, it must be made within six months of making the foreign application.

Consequentially, the application with foreign antecedent shall be granted, over a new local application with no prior filing.

Deposit System in Design Registration

The registrar is mandated by the Patent and Design Act to verify if the application for Design rights has compiled with the requirements of the Act, not to check if the design is registrable. See section 16 (2) of the Act.

In other words, Nigeria operates a Deposit System of registration, as opposed to the Examination System obtainable in industrialised countries.

This means that even though an application for design rights is granted by the registrar, it is granted as applied for. It does not mean the design in question is new. Determining whether or not a design is new is left to the decision of a court of competent jurisdiction.

That is to say, the Court shall determine whether the application complies with the requirement of newness under Section 13 (1) (a) of the Act. If the Court decides that the design does not pass the test of newness, the granted rights shall be declared null and void.

Therefore, in Nigeria, the burden of proof is upon whoever is contesting a design to prove that such an a design is not new.

Lifespan of Design Rights in Nigeria

Industrial design rights in Nigeria are effective for five years from the date the application was made. With payment of the prescribed fee, it can be renewed for two consecutive periods of five years each. The prescribed fee shall be paid within six months into the renewal period.

Infringement on Industrial Design Rights

Registering an industrial design confers rights on the creator. It precludes any other person from reproducing, importing, selling or utilising the design in manufacturing or for commercial purposes.

Thus, any person that deals with a design in an unauthorised manner is infringing on the rights of the creator. Such a person is an infringer, and can be subject to liabilities by the order of a court.

The Court of competent jurisdiction in matters relating to infringement of Industrial design rights is the Federal High Court. The decision of the Court can be appealed to the Court of Appeal, and then to the Supreme Court.

The Court may grant remedies against the defendant in injunctions and damages.

Patent in Nigeria

A patent is an intellectual property that grants exclusive rights with regard to an invention.

All over the world, it is common knowledge that security is at the heart of human desires. A major benefit of intellectual property rights is the guarantee of economic security for human creativity. I would say, ‘Creativity is the soul of innovation, and innovation is the soul of entrepreneurship.’

Patent, like other IPs, protects the patented product or process from possible unauthorised reproduction, use, sale etc. Thus, granting exclusive rights to deal with the invention for a fixed period of time to the patentee.

In Nigeria, the statute regulating Patents is cited as the Patent and Design Act (hereinafter referred to as PDA). This Act contains provisions regarding the administration of patents, as well as designs. From clarifications on patentable inventions, to examination of applications and licenses of rights, the Act provides for the registration and proprietorship of patents.

Patent is granted by application to the Patent and Design Registry; examined by the Registrar under the authority of the Minister for Industry, Trade and Investment.

Patentability of Inventions in Nigeria

Patents can be obtained for both products and processes. The key determinant of eligibility for patent is newness of invention and industrial applicability.

According to Section 1 (1) of the PDA, an invention is patentable if it is a new invention or an improvement upon an already patented invention. In both cases, the invention must be a result of an inventive activity and must be industrially applicable.

An invention which has been made public or a product of common knowledge in a field is not new and therefore not patentable. Similarly, an invention that cannot be manufactured or used in any kind of industry, including Agriculture, is not patentable.

Moreover, a patent cannot be validly obtained in respect of plant or animal varieties, or essentially biological processes for the production of plants and animals (other than microbiological processes and their products). Inventions that are contrary to morality or public order are also not patentable.

Patent and Foreign Priority

Nigeria is a party to conventions and treaties relating to intellectual properties. For example, Nigeria is a signatory to the Patent Cooperation Treaty (PCT), in line with the Paris Convention for the Protection of Industrial Property (1883).

According to Section 27 of the PDA, the Minister may declare a country or countries as a convention country (ies) by an order in the Federal Gazette. When this is done, an application filed by a person in Nigeria who has earlier made the same application in a convention country shall be entitled to foreign priority.

In other words, the application filed in Nigeria shall be deemed to be filed as at the time the application was made in the other country. However, for such an application to enjoy foreign priority, it must be made within twelve months of making the foreign application.

Consequentially, the application with foreign antecedent shall be granted, over a new local application with no prior filing.

Patent ownership in Nigeria

In patenting an invention, the true inventor differs from the statutory inventor. The former is the one who invented the product or process. While the latter is the person to first filed for patent.

The right to a patent in respect of an invention is vested in the Statutory Inventor, whether or not he is the true inventor. However, the true inventor is entitled to be named in the patent. Moreover, if a statutory inventor obtains his position without the consent of the true one, the rights in such an application shall be transferred to the true inventor.

In case of an invention made by an employee in the course of his employment, the patent right shall be vested in the employer. This is the same for an invention made in the course of executing a contract for the performance of specified work.

In the case of an invention made by contributions from more than one person, they are all inventors. However, a person who has merely assisted in doing the inventive work without contributing any inventive activity is not an inventor.

Registration of Patent in Nigeria

Like trademarks, registering an invention for patent in Nigeria is pretty straightforward. For ease of process, engaging your legal practitioner or agent is well advised. Section 3 (1) of the PDA specifies the information to be provided in a Patent application.

Notably, Section 3 (3) provides that an application can only be made for one invention. Although may include claims for many products or processes in connection with such invention.

The registrar is saddled with the responsibility of examining every patent application. He may also reject an application that has failed to comply with prescribed procedure.

Deposit System of Patenting

The registrar is mandated by the PDA to verify if the application for patent has compiled with the requirement of the Act, not to check for its patentability. See section 4 (2) of the PDA.

In other words, Nigeria operates a Deposit System of Patenting, as opposed to the Examination system obtainable in some other countries.

This means that even though an application for patent is granted by the registrar, it is granted as applied for. It does not mean the invention in question is patentable. Deciding whether or not an invention is patentable is left to the decision of a court of competent jurisdiction.

That is to say the Court shall determine whether the invention complies with the provisions for patentability under Section 1 and 3 (2) of the PDA. If the Court decides that the invention does not pass the test of patentability, the granted patent shall be declared null and void.

Therefore, in Nigeria, the burden of proof is upon whoever is contesting a patent to prove that such an invention is not patentable.

Lifespan of Patent in Nigeria

Section 7 of the PDA provides that a patent shall expire 20 years after its application was filed. A patent can also lapse if its annual fees are not paid for six months after the due time.

Infringement on Patent

Patent protects an invention from acts that violate the rights of the inventor, whether in importation, sale or use. Any unauthorized act done with the invention for industrial and commercial purposes shall constitute an infringement of the patent.

In Beijing Cotec Tech. Corporation & Anor v. Greenlife Pharm. Ltd & 5 Ors (2003-2007) 5, I.P.L.R page 100, the Court held thus, “It is submitted on behalf of the Plaintiffs that by virtue of a Patent No. 13566 as contained in the Certificate of Registration Exhibit DIHYDRO 1B, the plaintiffs have shown a legal right worthy to be protected from invasion or infringement by others.

“It is settled that what the Plaintiffs need to show is not only the legal right but that the legal right is threatened. Refer to Akibu v. Oduntan (1991) NWLR (Part 171) 1 at 10.”

The Court that has exclusive jurisdiction to hear and determine matters of infringement of patents is the Federal High Court. The Court may grant remedies against the defendant in injunctions, damages, or an order for account of profits.

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Credit:

• AN OVERVIEW OF THE LAW OF PATENTS IN NIGERIA (published by Nigerian Law Guru)
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• Patent Law and Requirements for Patent Registration in Nigeria (by Resolution Law Firm. Published by HG.org)
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• PATENT REGISTRATION IN NIGERIA| HOW TO REGISTER A PATENT (published by Resolution Law Firm)

Trademarks in Nigeria

Want to learn about trademarks in Nigeria? Hang on!

Ever heard of Intellectual property (IP)? Trademarks are a principal part of intellectual properties. Like other IPs, trademarks are intangible properties; creations of the mind.

A trademark is a word, sign, symbol, logo, device, slogan etc. capable of distinguishing the goods or services of an enterprise from the other. They protect against confusion in the identification of products.

Trademarks are protected by Intellectual Property Rights. These rights, generally speaking, are framed to preserve the sanctity of creativity. Therefore, trademark rights help to legally ensure that your word or device is not reproduced by an infringer.

In Nigeria, trademark is chiefly regulated by the Trade Marks Act. This statute specifies the operation of trademarks in Nigeria, from registration to rectification, to transmission etc. Other laws that regulate trademarks in the Nigerian milieu include the Merchandise Marks Act (Cap M10 LFN 2004), as well as the Nigerian Trade Mark Regulations 1967.

In the case of Fedoro Limited & Anor v. Ibeto Industries Limited (2003-2007) 5, I.P.L.R page 158, 159, Musdapher, J.S.C. held thus, “The essence of a Trade Mark if that it indicates a connection in the course of trade between the goods and some person having the right to use the same. A Mark, in this connection includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral or any combination thereof;

“A Trade Mark on the other hand, is a Mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate, a connection in the course of trade between the goods and some persons having the right either as a proprietor or a registered user to use the Mark.”

What can constitute a Trademark?

The Trade Marks Act has specific provisions relating to what can constitute a trade mark.

Thus, not every phrase, word, logo or slogan can simply become a trademark. The central attribute of every trademark is distinctiveness.

In other words, in order for a sign to constitute a trademark, it must be prima facie distinctive. Remember that the main focus of trademark rights is to eliminate confusion as to what is what; or who owns what.

Trademarks, in Nigeria, are registered at the Nigerian Trade Marks Registry. The trademark registrar acts on the authority of the Minister of Industry, Trade and Investment. In fact, the Trademarks, Patent and Design Registry is under the Commercial Law Department of the Federal Ministry of Industry, Trade and Investment.

Apart from being distinctive, a word to be registered as a trademark must have no direct reference to the character or quality of the goods. It must not be a geographical name or a surname. It cannot also be contrary to law, morality, or be scandalous.

Largely, a word that is commonly used in relation to a trade cannot be registered for a product in that trade. For example, the word ‘Milky’ may not be trademarkable for a milk product. However, ‘Milky Dem’ may be trademarked for a sanitary pad.

Trademark Rights in Nigeria

Trademark rights may arise in Nigeria based on either use or registration.

Through frequent and popular use of an unregistered trademark, a user can acquire goodwill in that mark. In such a case, such a user can enjoy the right of passing off, as may be held by a court of competent jurisdiction. For a claim of passing off to succeed, the user must show that he has acquired goodwill in the mark and that the ‘infringement’ has led to injury.

However, the user of an unregistered trademark cannot bring a successful action in case of infringement, or claim damages for his loss.

A registered trademark enjoys full rights under the law. It can be protected by the Court, assigned, or willed.

In Patkum Industries Ltd. v. Niger Shoes Manufacturing Ltd (1988) 5 NWLR (part 93) 139 at 141 and Dyk Trade Ltd. v. Omnia (Nig.) (2000) 12 NWLR (Part 680) 1 at 9, it was held that Trade Mark when registered, entitled the proprietor to sue or institute an action for an infringement.

Trademarks Classification in Nigeria

Trademarks are grouped in classes. In classifying trademarks, Nigeria adopts the Nice Classification Scheme. In line with this classification, trademarkable goods and services are divided into 45 classes. The same trademark cannot be registered in the same class.

In the earlier cited Fedoro case, the Court also held that, “An action for infringement will therefore lie where a competitor uses registered Trade Mark in connection with proprietor’s goods for the purpose of competing them with his own goods in the same class. See Bismag Ltd v. Amblins (Chemists) Ltd. (1940) Ch 667.”

Trademark Registration in Nigeria

As earlier stated, trademark registration in Nigeria are done at the Nigerian Trade Marks Registry.

In registering a trademark in Nigeria, the involvement of a lawyer or an accredited agent is well advised. There are possible issues in the registration that requires specific know-how.

Processes involved in registering a trademark in Nigeria include:

1. Searching for the availability of the trademark.
2. Applying for the trademark.
3. A notice of Acknowledgment from the Registry.
4. A notice of Acceptance from the Registry.
5. Publication of the Trade Marks Journal.
6. (Possible objection(s) to the Certification of a Trademark.)
7. Issuance of Certificate of Registration.

An application may be denied by the registry if the word or sign conflicts with an existing one.

Registering a trademark in Nigeria may take around 18-25 months, given there are no objections to or actions arising from objections to the registration. And depending on the professional fee charged by your agent, registration may cost about 100,000 – 200,000 naira.

It is also possible to register a trademark for more than one class. In fact, it is advisable to register your trademark in a class, and in related classes.

In registering a trademark, use or intention to use is also important. However, a trademark may be assigned to a company about to be formed. Its registration can also be accompanied with an application for the registration of a person as a registered user of the trademark.

Lifespan of Registered Trademarks

According to section 23 (1) & (2) of the Trade Marks Act, a registered trademark in Nigeria is valid for seven years. After the expiration of this period of seven (7) years, the registration may be renewed for periods of fourteen (14) years.

Infringement of Trademarks

An unauthorised commercial use of a registered trademark constitutes a trademark infringement. Upon infringement, the owner of the trademark may bring an action against the infringer at the Federal High Court. This is the Court that has competent jurisdiction to hear and determine this issue. The decision of the Federal High Court can further be appealed to the Court of Appeal, and then to the Supreme Court.

On the test for determining whether there was an infringement, the Court in I.T. (Nig.) Ltd. v. B.A.T. (Nig.) Ltd (2009) 6 NWLR (Pt. 1138) 477 held that, “In determining whether a trademark has infringed another, it is the offensive or offending trademark that is considered such that whether the person who sees the offending trademark in the absence of the one breached, and in view of his general recollection, the nature of the offending trademark is likely to deceive him into thinking that the trademark before him is the authentic one.”

Remedies available for trademark Infringement in Nigeria

In a case of trademark infringement, remedies that may be granted by a court in Nigeria are mainly Injunctions and Damages.

As ex parte, the Court may order a preliminary or an interim injunction to restrain acts of infringement pending the decision of the Court. Final injunctions are granted after the trial to perpetually restrain a party from using the trademark.

Damages from infringement actions can also be punitive, special or general.

In the case of CPL Industries Limited v. Morrison Industries Plc (2003-2007) 5, I.P.L.R page 350, Abdullahi Mustapha J. held thus, “Mere proof of infringement entitles the Plaintiff to damages. See Spalding v. Gamage (1915) 31 R.P.C 273. In Draper v. Trist (1939) 56 R.P.C. the Court of Appeal in England held that when passing-off is proved, the Court will infer to some damages to the plaintiff and may award more than nominal damages without proof of special damages.”

Aside from injunctive reliefs and damages, the plaintiff may also be granted an Anton Pillar order in the course of trial, and an order for Account of profits. The defendant may also be asked to pay Costs of the action and solicitors’ fees.

Protecting intellectual properties is very important. No registering a trademark may cause avoidable loss of profit to a business.

See also: Patent in Nigeria

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Credit:

– Trade Marks Act Cap T13 LFN 2004

– Nigeria: Trademarks Comparative Guide by John C. Onyido (S.P.A. Ajibade & Co.)

1Cap T13 LFN 2004

2Cap M10 LFN 2004