Sustaining A Viable Business Brand In Nigeria: Leveraging On Intellectual Property Rights (IPRs) -By O.C Ali, Esq.

1.0 INTRODUCTION

Many decisions are often made at the point of birthing a business, some of which are taken before and after the commencement of the business. Chiefly among these decisions are choosing a BRAND NAME, LOGO, SLOGAN among others, which on the long run becomes the principal identity of the business. It is essential to know that most successful businesses within our economy have, in addition to ability to adapt to the ever changing business environment, possess registered intellectual property rights (IPRs) for their brands which have overtime attracted goodwill and relevance to the business.

In Nigeria, the whole regime of Intellectual Property(IP) and intellectual Property rights (IPRs) are defined and regulated by several statutes and regulations. These include the Copyright Act, the Patent and Designs Act, and the Trade Marks Act, among others. These legislative instrument provide for ways of protecting trademarks and other IPRs, which is achieved through the courts by a blend of remedies for any infringement on guaranteed rights.

While many Nigerians may be oblivious of the benefits of having a registered brand name, logo or slogan for their business, there are notorious examples of businesses with track record of generational relevance due to its approved, registered and licensed branded outlooks. For instance, the Coca-Cola Company which is an American multinational beverage corporation, founded in 1892 and best known as the producer of Coca-Cola drink has had its significance over a Century. As at 2020, the Company had 500 brands in over 200 countries of the world, its success over the years depend on a large part of its ability to obtain legal protection for its intangible creations and intangible assets.

At this point lets appreciate what rights in a business can be protected and how same can be protected under our laws. Hence, this article seeks to assist business owners, in understanding some rudiments of intellectual property law and rights and its implication on business growth and development.

2.0 INTELLECTUAL PROPERTY RIGHTS AND PROTECTIONS OPENED TO BUSINESSES AND INDIVIDUALS.

Lay people often use the terms brand name, patent, trademarks and copyright interchangeably. Hereunder we shall briefly understand these concepts and also situate them within the contextual definition of Nigerian laws, while drawing out practical examples on same.

2.1.1 Copyright

Copyright is the right to reproduce a work. The owner of a copyright in an original work, performance, or recording has the exclusive right to copy it, to decide how it will be published and distributed, to keep it from being altered or against his or her wishes, and profit from it. The copyright holder also has the right to give others the permission to use the work in specific and limited ways.

Under the Nigerian laws, the Copyright Act makes it clear in section 1, where it defined work eligible for registration as copy right to be; literary works, musical works, artistic works; cinematographs films, sound recording and broadcasts. Equally section 12 of the Act provides for the right to claim authorship of copyright, and section 15 and 16 covers infringement and action for infringement respectively.

Possible defences to copyright infringement in Nigeria includes fair dealings  which is an exception in Nigeria’s Copyright law, allowing a work to be copied for the purposes of private research or news reporting. For instance, if a Newspaper is doing a story of Coca-Cola or Shoprite it is allowed to display their logo, if it is part of the story.

2.1.2 Trademark

A trademark is a mark (a name, or picture, or some other distinguishing mark) used by a person or business for the purpose of distinguishing their goods or services from other people’s. Trademark gives the owner legal protection over brand name, logo, catch phrase, or a combination of these from unauthorized use and further gives the lawful owner the right to stop other competitors from passing off their goods and services and to be compensated for any damage the business or individual may suffer as a result of this unfair competition. Trademarks protection also protects consumers by prohibiting confusing trademarks in the market place.

In Nigeria, Trademarks can be registered by filling an application at the Trademark Registry office, therefore giving the owner the exclusive right to use it throughout Nigeria. Section 3 of the Trademark Act, outlines 3 stages for the registration of trademarks, to wit: Acknowledgment and acceptance stage; Publication Stage; Certification stage. Note that, the issuance of the Certificate of registration is a prima facie evidence of the possession of exclusive right to use a particular trademark. A registered trademark appears with a sign; (a circled capital letter “R”) ®.

Take Notice that a registered trademark is for a period of seven (7) years, but may be renewed from time to time via an application for renewal made to the Registrar. Renewed registration is valid for fourteen (14) years from the date of expiration of the original registration or of the last renewal of registration. 

To simply prove trademark violation, a trademark holder would have to show that the competitor or violator has actually used its trademark as a trademark to mislead the public and acquire economic gain unto itself.  Note further, that trademark violations occur only when the “distinguishing features” of the original has been borrowed.

Some trademarks are so distinctive that borrowing even a part of them is considered a trademark violation. In a 1988 case, Coca-Cola Ltd. V. Fisher Trading Co. Ltd. (1988) 25 C.P.R (3d) 200 (F.C.T.D), a Canadian court ruled that it was a trade-mark violation to sell bottles with the word “Cola” in the same script as Coca-Cola uses as its bottles. Even though “Cola” is a common word, the combination of that script with that word was uniquely associated with the Coca-Cola Company, so that someone seeing those bottles might get the idea that they were getting Coca-Cola products.

2.1.3 Patents& Designs

A patent is a limited right granted by the government to an inventor. An invention is patentable, if it is new, results from inventive activity and is capable of industrial application; or if it constitutes an improvement upon a patentable invention and is also new. (see Section 1, of the Patent and Designs Act, 2004). Subject to the Provision of the Act, a patent shall expire at the end of the twentieth year from the date of filing of the relevant patent application. (Section 7 and 8 of the Act.)

Many companies have inventions created to assist with its business outlook in the market. Many of these are patented, even the ones that are not particularly unique, since an invention does not have to be totally unprecedented to be patented; it just needs to have some element of novelty.  Section 1 (b) of the Patent and Designs Act (supra).  For example, the Coca-Cola Company owns a patent on a method of making “barrier coated plastic containers.” Obviously no one has the exclusive right to make plastic containers, but Coca-Cola has the exclusive right to use the particular method of making those containers that they describe in their patent.

3.0 Court Jurisdictions on Intellectual Property Rights (IPRs) matters

The functions of the courts are pivotal in resolving Intellectual Property Rights (IPRs) issues. Generally section 251 (1) (f) provides that the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil cases and matters of any Federal enactment relating to copyright, patent, designs, trademarks, passing off, industrial designs and merchandise marks, business names, commercial and industrial monopolies, combines and trusts, standards of goods and commodities and industrial standards.

Similarly, under the extant trade mark legislation in Nigeria, which is the Trademark Act of 1965, (revised into the Laws of Federation of Nigeria 2004)section 67 of the Act defines ‘court’ as the Federal High Court. In simple terms, this would seem to suggest that under the Act any case bordering on Intellectual Property Rights (IPRs) issues shall be resolved by approaching the Federal High Court.

4.0 Conclusion and Recommendations

Conclusively, in order to stay competitive and unique, a business/company needs to protect many of its intangible assets, which is the core of the business thereby protecting itself against its competitors at all times.

Finally this article recommends the following to businesses and entrepreneurs:

1. Having a registered business brand and other intellectual property rights, will assist in legally positioning a business for possible investments, like Foreign Direct Investments (FDIs), as investors will have more confidence dealing with a business with legal backings on all sides.
2. Entrepreneurs and businesses must be proactive and not wait to seek remedies for any breach of their intellectual rights under ‘passing-off’ as this option is suggested to be categorized as a ‘lazy man’s option’ in enforcing intellectual property rights under common law.
3. Possessing intellectual property rights, gives business owners and entrepreneurs the authenticity, ownership and security in business.
4. A valid intellectual property right is an integral part of business goodwill/franchise which are saleable and are equally a channel for marketing, branding and customer retainership.

O.C ALI, is a Lawyer, with interest in Dispute Resolution & Corporate Legal Advisory. (Partner, MCALI LEGAL CONSULT, LP).

mcalilegal@gmail.com

He tweets: @CharlesMcali

CAVEAT: The Information provided in this article should not be taken as providing legal advice on the subject. Kindly send an email, to mcalilegal@gmail.com . If you need further legal advice on the issues raised therein.

References

1. Copyright Act, Cap C 28 Laws of the Federation of Nigeria2004.
2. The Patents and Designs Act, Cap P2 Laws of the Federation of Nigeria2004.
3. The Trade Marks Act, Cap T13 Laws of the Federation of Nigeria 2004.