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Protection Of Intellectual Property Rights In Nigeria – Trademark



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Intellectual property refers to anything created by the human
mind, including inventions, musical compositions, literary works,
symbols, names, designs, images, and even concepts.

Any Intellectual Property (“IP”) requires time, work,
effort, real capital, education or expertise to be created. Hence,
an Intellectual Property Owner must safeguard his or her
intellectual inventions.

This article seeks to enlighten the reader on the following:

  1. What are Intellectual Property rights;

  2. Types of Intellectual Property rights;

  3. Protection of Intellectual Property rights;

  4. Enforcement of Intellectual Property rights;

  5. Remedies for Infringement on Intellectual Property rights.

  1. WHAT ARE INTELLECTUAL PROPERTY RIGHTS?

Intellectual property rights (also known as “IP
rights”) are exclusive proprietary rights provided by law to
the owners of industrial, scientific, literary, and creative works
that are innovative brain or mental products.

  1. TYPES OF INTELLECTUAL PROPERTY
    RIGHTS

IP rights can be categorised as follows:

  1. COPYRIGHT

Copyrights work are literary works; musical works; artistic
works; cinematograph films; sound recordings; and broadcasts.
Section 1 of the Copyrights Act

The law that governs Copyright in Nigeria is the Copyright Act
(as amended), Cap. C28, Laws of the Federation of Nigeria 2004.

Copyright in literary, artistic, and musical works lasts for 70
years from the date of the author’s death,  cinematograph
films and photographs subsists for 50 years from the date of the
first publication of the work, copyright in sound recordings and
broadcasts subsists for 50 years from the date of the making of the
first recording or the broadcast. Section 27 of the
Copyrights Act.

  1. TRADEMARK:

Trademark means, except for a certification trademark, is a mark
used to distinct sign, mark, design, or expression which
distinguishes goods and services.  Section 67 of the
Trade Marks Act.

The law that governs Trademark in Nigeria is the Trade Marks
Act, Cap. T13, Laws of the Federation of Nigeria 2004.

Marks that are deceptive or scandalous, generic and descriptive,
geographical names in their ordinary signification or chemical
substances cannot be registered as trademarks.

Trademarks are registered for an initial period of seven years
from the date of the application for registration. After this, they
can be renewed for subsequent periods of fourteen years.

  1. PATENT

A patent is an exclusive right granted in respect of an
invention, which may be a product or a process that provides a new
and inventive way of doing something or offers a new and inventive
technical solution to a problem. Section 1 of the Patents
and Industrial Designs Act.

The law that governs Patents in Nigeria is the Patents and
Designs Act, Cap. P2, Laws of the Federation of Nigeria 2004.

Patents remain in force for twenty (20) years from the date of
filing the application.

  1. INDUSTRIAL DESIGN:

An industrial design consists of the creation of a shape,
configuration, or composition of pattern or colour, or combination
of patterns and colours in three-dimensional forms, containing
aesthetic value. It can be a two- or three-dimensional pattern used
to produce a product. Section 12 of the Patents and
Industrial Designs Act.

A registered design is protected for five (5) years from the
date of the application for registration. Protection may be renewed
for two further consecutive periods of five (5) years each upon
payment of the prescribed fees. Section 20 of the Patents
and Industrial Designs Act.

  1. TRADE SECRETS

A trade secret is a formula, practice, process, design,
instrument, pattern, or compilation of information that is not
generally known or reasonably ascertainable by which a business can
obtain an economic advantage over competitors or customers. It may
be confidential business information that provides an enterprise a
competitive edge. Trade secrets include sales methods, distribution
methods, consumer profiles, advertising strategies, lists of
suppliers and clients, and manufacturing processes.

  1. PROTECTION OF INTELLECTUAL PROPERTY
    RIGHTS

Intellectual Property rights can be protected by
registration.

  1. TRADEMARK

The Trade Mark Act establishes the office of the Registrar of
Trade Marks to which applications for the registration of
trademarks are to be made.

  1. PATENTS

An application for a patent is made to the Registrar of Patents
and accompanied by a description of the relevant invention with any
appropriate plans and drawings. The right to patent an invention is
vested in the first to file a patent application in Nigeria.

  1. INDUSTRIAL DESIGN

An industrial design can be protected by registration, with the
Nigerian Patents and Designs Registry.  An industrial design
is registrable if it is new and not contrary to public order or
morality.

  1. COPYRIGHT

Copyright can be protected by registration with the Nigerian
Copyright Commission. This protects the exclusive right granted to
an originator of creative work to reproduce the work for a certain
period.

  1. TRADE SECRETS

Nigeria does not have any existing legislation for the
protection of trade secrets. However, trade secrets can be
protected under contracts, torts, and other legal principles.

  1. ENFORCEMENT OF INTELLECTUAL PROPERTY
    RIGHTS

Some of the mechanisms for the enforcement of Intellectual
Property rights include Alternative Dispute Resolution, Criminal
complaints, and Civil Action through the courts or relevant
agencies such as the Police, the Nigerian Copyright Commission,
trademark, patent, and design registry.

The Federal High Court has exclusive jurisdiction to hear
intellectual property matters by virtue of Section
251 (1)(f) of the Constitution of the Federal
Republic of Nigeria 1999 (as amended 2011).  

  1. REMEDIES FOR INFRINGEMENT OF INTELLECTUAL PROPERTY
    RIGHTS

The remedies available for the enforcement of intellectual
property rights are damages or accounts of profits, delivery and/or
destruction of infringing items, inspection and seizure, and
injunction.

The type of remedy will depend on the nature of the Intellectual
Property infringed and the peculiarity of the circumstances in
question.

CONCLUSION

The need to protect Intellectual Property in Nigeria is gaining
traction daily. It is therefore imperative for Intellectual
Property Owners to protect their intellectual creations from
infringement and exploitation from third parties. 

Also, the protection of Intellectual Property will prevent
competitors or anyone else from using the ideas of the Intellectual
Property owners for their profit without consent.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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