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Intellectual Property Rights in Nigeria

What is Intellectual Property Right?

Before we delve into the definition of intellectual property right, let us first examine what intellectual property means.

According to the World Intellectual Property Organization (WIPO), intellectual property refers to creations of the mind: inventions; literary and artist intellectual works; and symbols, names, and images used in commerce. Examples of intellectual property include music, poetry, logos, artwork, NFTs, brand name, books and so on.

Take away

  1. It’s a category of property
  2. it’s an intangible creation
  3. of human intellect/mind

From the foregoing, we can now define intellectual property right as the right given to persons over the creations of their intellect or mind.

TYPES OF INTELLECTUAL PROPERTY RIGHT

In Nigeria, there are four rights in relation to intellectual property and they are copyright, trade mark, patent and design rights. There are three main laws governing the protection and administration of intellectual property in Nigeria and they are Copyright Act, the Trade Marks Act, and the Patents and Designs Act. Now let’s discuss these rights briefly.

  1. Copyright:

Copyright is the right creators have over their literary and artistic works. Copyrights is governed by the Copyright Act, Cap 68, Laws of the Federation of Nigeria, 2004. According to Section 1(1)(a-f) of the Copyright Act, works protected by copyright include; literary works, musical works, artistic works, cinematograph films, sound recordings and broadcasts.

Going by the provision of Section 1(2) of the Copyright Act, for a literary, musical or artistic work to be eligible for copyright it must satisfy the following requirements:

  1. It must be original
  2. The work must have been fixed in any of definite medium of expression now known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either by directly or with the aid of any machine or device.

Hence, all copyright works must first, be original or made in a way to be of original character and secondly, be expressed in a definite medium before it can be protected under the law. The reason for this is because copyright does not protect ideas, rather, how the ideas are expressed. The Nigerian Copyright Commission (NCC) gives owners of copyrights the option to deposit a copy of their works with the NCC and receive a certificate that serves as notification of the existence of the work to the general public.

Duration of Copyrights (section 2(2) of the Copyright Act).

  1. The Copyright of literary, musical or artistic works other than photographs shall last throughout the life-time of the author plus 70 years after his demise, or in cases of a government or a body corporate, the copyright shall last for a period of seventy years after the year in which the work was first published.
  2. The Copyright cinematograph films and photograph shall last for 50 years after the end of the year in which the work was first published.
  3. The Copyright Sound records shall last for a period of 50 years after the end of the year in which the recording was first published.
  4. The Copyright to broadcasts shall last for a period of 50 years after the end of the year in which the broadcasts first took place.

    2. Trademark:

A trade mark is defined as a word, letter, label, numeral, colour, signature, device or any combinations of words, letters, labels, signatures that identify and distinguish the source of the goods or services of one manufacturer from those of others in the course of trade.

Thus, trade marks are signs capable of distinguishing the goods or services of one enterprise from those of other enterprises. Trade marks date back to ancient times when artisans used to put their signature or “mark” on their products.

Using a trademark prevents others from using a company or individual’s products or services without their permission. They also prohibit any marks that have a likelihood of confusion with an existing one. What this means is that a business cannot use a symbol or brand name if it looks or sounds similar, or has a similar meaning to one that’s already on the books especially if the products or services are related. For instance, a soft drink company cannot legally use a symbol that looks like that of Coca-Cola and it cannot use a name that sounds like Coke. It is worthy to note that there are forty three (43) classifications of trade mark.

Duration of Trade Marks

As provided in section 23(1) of the Trade Marks Act, a trade mark is valid for a period of seven (7) years but may be renewed from time to time. Section 23(2) further provides that, upon the expiration of the original registration, the trademark shall be renewed for a period of fourteen (14) years on application for renewal.

  1. Patent:

A patent is a property right granted to an inventor by a government authority. The grant provides the inventor exclusive rights to the patented process, design, or invention for a designated period in exchange for a comprehensive disclosure of the invention. Patents law seeks to protect inventions such as devices, manufacturing processes, machines, technological equipments, industrial designs and chemical compositions.

Generally speaking, a patent provides the patent owner with the right to decide how, or whether the invention can be used by others. In exchange for this right, the patent owner makes technical information about the invention publicly available in the published patent document.

Patent law is governed by the Patents & Designs Act.

Patentable inventions

According to section 1(1) of the Patents and Designs Act, an invention is patentable if:

  1. The invention is new or an improvement of an already patented invention.
  2. It is a result from inventive activity; and
  3. It is capable of industrial application.

Non-patentable inventions

Section 1(4) of the Patent and Design Act prohibits certain invention from obtaining patent and they are:

  1. Plant or animal varieties, or essentially biological processes for the production of plants or animals. However, you can patent microbiological processes and their products.
  2. Inventions in which the publication or exploitation would be contrary to public order or morality.
  3. Principles and discoveries of scientific nature are not invention and therefore not patentable (Section 1 (5)).

Duration of Patent

A patent lasts for a period of twenty (20) years from the date of filing the relevant application, provided that the annual fees are duly paid for the duration of its potential life (Section 7 P & D Act).

Unlike copyright, the rights conferred on a patentee is not automatic. They require the statutory formality of registration to put them into effect. This is done through the office of the Registrar of Patents in the Federal Ministry of Industry, Trade and Investment. The Registrar has a duty under the Patents & Designs Act to examine all patent applications to ensure that they conform with the provisions of the Act.

  1. Industrial Design

Section 12 of the Patents and Designs Act defines an industrial design as any contribution of lines or colours or both, and any three-dimensional form, whether or not associated with colours, which is intended by the creator to be used as a model or a pattern to be multiplied by industrial process and is not intended solely to obtain a technical result.

Hence, if a design relates to a functional element or enhances the functionality of a product, it will not be registerable as an industrial design and is more suitable for patent protection.

An industrial design constitutes the ornamental or aesthetic aspect of an article. A design may consist of three-dimensional features, such as the shape or surface of an article, or of two-dimensional features, such as patterns, lines or colours.

Registerable Designs

For an industrial design to be registerable, it must:

  1. Be new;
  2. Not be contrary to public order or morality.

The right to the registration of an industrial design is vested in the statutory creator, that is the person who, whether or not is the true creator, is the first to register the design, or validly claims a foreign priority for an application for registration of the design. However, the true creator shall be entitled to be named as the true creator in the register.

The idea behind industrial design law is to prevent others from reproducing the product’s exterior design for industrial use. The owner of a registered design can prevent others from copying, importing, illicitly profiting, selling or utilising for commercial purposes by reproducing the design.

Duration of an industrial Design

A registered design is protected for five years from the date of the application for the registration and may be renewed for further consecutive five years upon payment of the prescribed fees (Section 20(1)(a-b) Patents and Designs Act).

Conclusion

In navigating the complex landscape of intellectual property protection, it is crucial to seek professional advice from experienced legal experts. Lawyers specializing in intellectual property can provide invaluable guidance and assistance in understanding the intricacies of IP laws, ensuring compliance, and safeguarding your creative works.

If you have specific concerns or questions related to intellectual property protection, the lawyers at Kleinfeld LP, renowned for their expertise in IP law, are available to provide advisory services. With their deep understanding of intellectual property rights and their commitment to client success, the legal team at Kleinfeld LP can help you navigate the legal aspects of IP protection and develop effective strategies to safeguard your creations.

To reach out to the lawyers at Kleinfeld LP for intellectual property advisory, you can visit their website at www.kleinfeldlp.com or contact them directly at info@kleinfeldlp.com.

 

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