Sabinus’ Something Hooge And The Curious Case Of The Legal Protection Of Image Rights In Nigeria -By Awoyemi Ayomide

The news of a lawsuit for intellectual property rights infringement instituted by Sabinus, “the investor” and popular comedian against Friesland foods (makers of peak milk) and UAC foods (gala sausage roll) is perhaps the most trending topic on social media in the last 48 hours. Like most trending topics, the news has gathered quite the attention and there has been an abundance of opinion (expert and non-expert alike) on the validity or otherwise of the comedian’s claim. This piece offers a quick primer on the intellectual property rights that have allegedly been infringed upon and the basis for legal protection.

The concept of Intellectual Property

In simple terms, intellectual property refers to the creations of the human mind through the ingenuity expressed by a person. Intellectual property, therefore, transcends every aspect of human life to include creations such as art, music, inventions, catchphrases, and slogans (as in the case of Sabinus). There are different forms of intellectual property with some of the prominent ones being copyright, patent, industrial designs, and trademark. With respect to Sabinus’ “something hooge”, the right in the coinage of the phrase is best protected as a trademark.

What are Trademarks and can slangs or catchphrases enjoy trademark protection?

The World Intellectual Property Organisation (WIPO) defines a trademark as “any sign that individualizes the goods of a given enterprise and distinguishes them from those of its competitors” What a trademark does is to give a product or a brand or unique identifiable character which distinguishes from other products in the market place. A good example is Nike’s tick sign and its “Just Do It” slogan. By virtue of Section 9 of the Nigerian Trademark Act, words that distinguish a product can be validly registered as a trademark. This translates to the fact that the valid registration of a trademark grants the proprietor of that mark, the exclusive right to use such a mark. It should however be noted that there are 45 different classes under which a trademark may be registered. The registration of a trademark in one class will not necessarily preclude the registration and usage of a similar mark in an entirely different class. For instance, the registration of a trademark under class 13 for products like firearms, ammunition, and projectiles may not exclude the registration of a similar class under class 14 with respect to precious metals, stones, and jewelry.

Thus, to determine the validity of Sabinus’ claim, some of the important questions that may need to be answered relate to whether “something hooge” has been validly registered as a trademark at the time of this claim and whether the use of the trademark by peak milk fall within the class(es) for which Sabinus has registered the trademark.

The Use of a cartoon with Sabinus’ likeness for Gala’s ad.

With respect to the alleged infringement by UAC foods, a cartoon that bears a likeness to the comedian’s image was used for an advertisement for their gala sausage roll. Although a photograph or portrait of a person generally falls within the purview of copyright, the rights of the person in the picture or the subject of the portrait cannot exactly be afforded the same protection under copyright law. The right of the person in the picture is what is known as their image rights. Image rights refer generally to the rights of a person to exploit aspects of their personality as they would like. This encompasses the exclusive right of a person to use their appearance, pictures or caricature and prevent third parties from commercially exploiting them without their permission. It may therefore be said that the use of a cartoon character that bears a very close resemblance to the comedian for a marketing campaign without his express permission amounts to the infringement of his image rights. It is however important to note that Nigeria lacks a specific legal framework for the protection and enforcement of image rights.

The provisions of Section 37 of the constitution which protects the right of a person to their privacy may however be extended to enforce an individual’s image rights. In other jurisdictions like the United Kingdom, the tort of passing off has been deemed appropriate for actions involving false endorsements or personality merchandising without due authorization. An action for passing off generally allows a claimant to seek redress when a person attempts to ride off the claimant’s goodwill without permission.

Concluding Remarks

Once again, it has become very clear that creators need to take the protection of their intellectual property rights very seriously as it stands at the very heart of their trade. It is also important that brands take caution and do their due diligence to ensure they are not infringing on the rights of anyone before jumping on a trend for their next marketing campaign. It should be noted that this piece is not a conclusive legal opinion on the case but only attempts to offer an insight to those who are not very familiar with intellectual property.

Awoyemi Ayomide is a graduate of Law, Obafemi Awolowo University Ile-Ife and can be reached via aoawoyemi@gmail.com.