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Intellectual property law and regulations: A review

By Somadina E. Okorie
29 September 2020   |   3:00 am
Intellectual property is an asset, a creation of the mind, a unique ingenuity belonging to the owner who is like a creator. It could be in form of trademarks, patents, designs, or copyrights.

Intellectual property is an asset, a creation of the mind, a unique ingenuity belonging to the owner who is like a creator. It could be in form of trademarks, patents, designs, or copyrights. There are laws regulating intellectual property distinctly to protect the owner from economic sabotage or infringement by unauthorized individuals or persons.

The laws regulating intellectual property ensure the rights and enable the owner or authorized persons to appropriate to themselves the economic value, and proprietary rights of the asset and the same time the freedom to alienate the same. In Nigeria, there are two (2) classes of Intellectual Property namely: Copyright and Industrial Property.

While Copyright is concerned with literary, musical, and artistic creations, Industrial Property covers the rights in patents, trademarks, industrial designs, utility models, plants and animal varieties, etc. The World Intellectual Property Organization (WIPO) captures the concepts of Intellectual Property by stating that: “IP refers to creations of the mind, such as inventions; literary and artistic works, design, and symbols, names, and images used in commerce…IP is protected in law by, for example, patents, copyright, and trademarks, which enable people to earn recognition or financial benefits from what they invent or create.

By striking the right balance between the interests of innovators and the wider public interest, the IP system aims to foster an environment in which creativity and innovation can flourish”. It is generally believed that Intellectual Property is an intangible property which enjoys protection by the law. However, I wish to disagree on the intangibility of all Intellectual Property given the fact that most of the work of Intellectual Property can be perceived, felt, heard, seen, and understood. I rather state that Intellectual Property is both intangible and tangible moveable asset and creation of mind which is transmissible by assignment.

So far, there is no single body of legislature regulating Intellectual Property in Nigeria. However, the Copyright Act regulates Copyright issues and interests in Nigeria. Trademark is regulated by the Trademarks Act Cap P2, Laws of the Federation, 2004. Patent and Design are regulated Patents and Designs Act Laws of Federal 1970. By way of definition, a trademark is the branding of a business to give it a unique identity and/or a name for access, description, and goodwill or/and a good facelift. It could be a name, phrase, symbols, or even a combination of numbers, logo, and a combination of both words and symbols.

To enjoy trademark, it must not compete, coincide, resemble or copy an existing Mark. Trademark is an intellectual property for goods and services owned by an organization or individual for purpose of the brand and identity. It is important to note that one of the essences or reasons for the publication of the Marks on the journal is to allow the general public the opportunity to register their interest or reservation on any Mark intended to be issued by the trademark office. There are detailed procedures for applying to the Trademark Registrar against any mark published on the journal for approval which for time constraint, I will not be able to go into. It is also important to note that an unregistered Trademark cannot be said to be infringed against.

In other words, for an action to succeed in a trademark under the Nigerian law, the trademark must be registered. This does not exclude the right of a foreign and well-known brand from bringing an action in Passing off. Trademark is divided into 45 classes under which registration can be made depending on the nature of the mark intended to be protected. I usually advise Mark owners to carry out a defensive registration which means registering the Mark on all classes. This will restrain any form of use of the same Mark by any other unauthorized person since the Trademark Registrar reserves the right to register another Mark user on any unregistered class. For the purpose of this piece of work, I adopt the definition of the patentable invention to mean those inventions the law will protect or grant. A Patent Invention on the other hand means a construction that has never existed before or a step forward in art. It is also important to state that not all inventions are patentable, e.g. adding nothing more than knowledge to what existed cannot be a patentable invention. Patentable Inventions will be indeed patentable (a) If it is new, result from inventive activity and capable of industrial application or (b) if it constitutes an improvement upon a patented invention and also is new, results from inventive activity and is capable of industrial application. Newness or novelty is a sine qua non of patentability. The phrase commonly used “the state of the art” refers to the field of knowledge against which the novelty of a patent monopoly is judged.

In Nigeria, the right to patent is not vested in a true investor; the right is invested on the statutory inventor that is, the person who first applied for the grant of the patent. Person whom the invention has been assigned and persons to whom a contractual license has been granted has the right to apply to register their title to the patent. The case is different in Great Britain and the United States of America. The law over there is that, the true inventor who can prove to be the true marker or the inventor has the proprietary right of a patent notwithstanding whose was first to file.

The intention of this work is to mainly expose, explain, and explore the process and procedure required by law for claims, registration, and application for the title over intellectual property in Nigeria. Since nothing said in this article is new or novel as long as intellectual property law and practice are a concern in Nigeria, several works of authors and authorities in this field of practice have been used copied, and sited, I will always acknowledge appreciation and respect their rights. Most importantly they work of F.O Babafemi (PhD) a renowned teacher and authority in the intellectual property law. The most prominent amongst these infringements in Nigeria comes from the musical works, most of the time; the users of copyright works do not realize their actions amount to copyright infringement. This article also explained the fact that the only requirement for a copyright owners to succeed in an action for infringement is to prove that the work is original, sufficient effort made to produce it and it is has been fixed in a definite medium of expression. The owner does not need to have registered the copyright to claim ownership and infringement unlike the practice under Trademark, Patent, and Industrial Designs.

The use of decided authorities in this work is for proposes of emphasizing the points. Finally I will end with this beautiful and very illustrative words of Belgore J (as he then was) in EXXON Corporation.V. ExxonNominees Industry Ltd (1977-1989)2.I.P.L.R page 417@420 held:“It is the law of this land that no man is entitled to carry on business in such a way as to represent that it is the business of another, or is in any way connected with the business of another; that is the first proposition. The second proposition is, that no man is entitled so to describe or Mark his goods as to represent that the goods are the goods of another. This is more true in this country where imitation of foreign things or names is in vogue, but the tribute the mediocre can pay to the boundary of injuring the name, the reputation, or the business of the genius; not at least when the genius has protected himself by the provisions the law.”

Okorie, a legal practitioner, wrote from Lagos.