IP Toolbox – Patent, Copyright, Trademark, Trade Secrets, Industrial Designs and Various Protections

By Ocheje Ochonia Khadija

Intellectual property has been defined by the World Intellectual Property Organisation (WIPO) as the creation of the mind, such as inventions; literary and artistic works; designs and symbols, names and images used in commerce.

 The creative and innovative ideas of the human person, although intangible, should be valued, held at their true worth, and protected from theft. The production of various tangible materials with the capacity to generate wealth can be linked back to the creativity and innovation of the person(s) that made the effort to think outside the box and dared to be original in their thought processes. As a popular saying puts it and is quite obvious to all, “Ideas rule the world”. The great works and wonders we see around us, the beautiful and amazing expressions we admire and the magnificence of inventions we honour are all products of the human intellect put to proper use. Moreover, the worth of the intellect cannot be overemphasised in discussions about the successes of man.

This understanding strengthens the discourse on the concept of intellectual property and makes a case for IP protection. IP as the innovative product of the mind [2] should be protected from theft like any other physical product. Similarly, because of the nature of IP as a product and investment, its protection is necessary for economic growth, whether for an individual, organisation or nation.

In addition, the process of production, or creation, in the creative industry for instance involves several interactions among different economic actors and stakeholders. For instance, the production of a film requires many contributors such as writers, actors, screenwriters, producers, camera people, directors, animation specialists, graphic artists, make-up artists, etc. Besides the production of the finished product that needs to be protected, some of the individual contributors in the process of creation are actively involved in the generation of original concepts that also qualify as intellectual property.

All of these show the potential of the creative industries in the creation of wealth through intellectual property. Moreover, contributors in the creation process in creative industries can adopt diverse tools in the protection of their IP comprising copyright, trademark, design protection, trade secrets, patents, or a combination of the various tools.

These instruments for the protection of IP are widely recognized and used all over the world. There are existing frameworks set for the protection of original works in Nigeria. IP is protected in law by patents, copyrights, trademarks, and trade secrets among others, that enables people to earn recognition or financial benefit from what they invent or create while protecting their works from third-party proliferation. Intellectual property is of various kinds, the intellectual property law that protects the works of an artist is different from that created by a scientist or a writer. This brings us to the next phase of this paper, what are the various kinds of intellectual property laws in Nigeria?

COPYRIGHT

Copyright is the exclusive rights granted to the creator of an original work. This gives the owner the exclusive right to authorise or prohibit certain uses of his work by others. Copyright is governed by the copyright Act Cap 68 Laws of the federal republic of Nigeria 1990. The agency in charge of copyright in Nigeria and any connected matters is the Nigerian Copyright Commission.

Copyright can be divided into two exclusive rights; moral rights which protect the reputation and integrity of the author and economic rights which gives the author the right to earn profits by direct exploitation of the work.

Sec (1) of the Copyright Act provides for works protected by copyright which include;

1. Literary works
2. Musical works
3. Artistic works
4. Cinematographic films
5. Broadcasts

For a work to enjoy copyright protection in Nigeria, it must satisfy two requirements. These requirements are provided in section 1(2) of the Copyright Act and it says that a literary, musical or artistic work must satisfy the twin requirements of originality and fixation. Works that satisfy such requirements enjoy automatic copyright protection without the need for registration or compliance with any formal or procedural rules. It is worthy of note that registering for copyright is not a precondition for protection. You initially do not have to register your copyright; it subsists automatically in a work from the moment the work is created. However, the Nigerian Copyright Commission (NCC) has established a voluntary copyright registration scheme designed to enable authors to notify the commission of the creation and existence of a work.

Why should an author register copyright?

NCC has justified the establishment of the registration scheme based on the following benefits;

• It provides an independent source of verifying data relating to a work or its author to the general public.
• The acknowledgement certificate issued provides prima facie evidence of the facts shown on it.
• It provides a depository for preserving original copies of works notified
• The information and data contained in the notification database offer reliable rights management information to members of the public and prospective licenses to the work.

In a nutshell, registering your copyright prevents people from;

• Copying your work
• Distributing copies of it, whether free of charge or for sale
• Renting or lending copies of your work
• Performing, showing or playing your work in public
• Making adaptations of your work,
• Putting it on the internet etc.

COPYRIGHT REGISTRATION PROCESS

Copyright registration is done with the Nigerian Copyright Commission (NCC) either online or physically going by the following steps;

1. Submit a completed registration form
2. Attach two copies of the work

• Evidence of payment of the prescribed fees

DURATION OF COPYRIGHT

• Copyright in literary, Musical or artistic works other than photographs lasts until seventy (70) years following the death of the author.
• In cases where the work is owned by a government or a body corporate, the copyright in the literary, musical or artistic work will expire seventy (70) years after the work was first published.
• Copyright in films, sound recordings, and photographs last fifty (50) years after the year the work was first published.
• Performance right subsists until the end of the period of fifty years from the end of the year in which the performance first took place.

PATENT

A patent is a monopoly right in an invention, this is an exclusive right granted for an invention which is a product. Patent law in Nigeria is regulated by the Patent Law and Design act P2 LFN 2004. An invention is patentable where it satisfies the requirement of Sec 1(2) of the patent and design. An act which provides that;

1. The invention must be new
2. It resulted from inventive activities and is capable of use in an industry
3. Constitutes an improvement on a patented invention.

HOW TO REGISTER YOUR PATENT

1. Search has to be carried out first to ensure that the product has not already been patented by another person.
2. An application will be made to the Registrar of Patents and Copyrights which must contain;

• The applicant’s full name and address
• The description of the relevant invention along with any plans and drawings where appropriate
• A claim that defines the particular protection or rights sought after by the applicant.
• Such other matters may be prescribed depending on the facts of the application.
  • The application will be accompanied by;
• Evidence of payment of the prescribed fee
• In the event the application was made by a legal practitioner on behalf of the applicant, a duly executed power of attorney will be required.

DURATION OF A PATENT

The lifespan of a patent is for twenty (20) years provided the annual renewal fees are paid for during its potential life. Where the patentee defaults in the payment of the annual renewal fee, the patent lapses after a six(6) months period of grace. If not renewed after the period of grace, it cannot be revived again.

NON-PATENTABLE INVENTORY

According to sections 1 (4) and (5) of the Patent and Design Act, some inventions may not be patentable, they include plants or animal varieties, or essentially biological processes for the production of plants or animals. Inventions that are contrary to public order and morality and also principles of a scientific nature.

TRADEMARK

A trademark may be described as a mark, which is used in the course of trade or business to identify goods or services emanating from a particular provider and to distinguish them from those of others. Trademark is often called a “brand”, by distinguishing brands of products or services, builds the reputation of the brand. Trademarks affect the consumer’s choice of product so much, it is the symbol through which consumers identify and become familiar with a particular product.

There are registrable and non-registrable trademarks.

A registrable trademark is a mark that falls under either of two parts; parts A and B of section 9 of the Trademark Act CAP T13 LFN 2004 which provides that for a trademark to be registerable under part A, the mark must contain one of the following;

• The name of a company, individual or firm represented In a special or particular manner.
• The signature of the applicant for registration or some predecessor in his business
• An invented word or invented words
• Any other distinctive mark.

To be registerable under part B, however, the mark must be distinctive.

NON- REGISTRABLE TRADEMARKS

 These include marks which are not permitted to be registered under the Act. They include;

• Marks which are deceptive or scandalous, contrary to law or morality
• Names of chemical substances.
• The Nigerian coat of Arms or other emblems of authority
• Patent, copyright, red cross and other similar words
• Identical and resembling trademarks

PROCEDURE FOR TRADEMARK

• Trademarks search
• Acknowledgement by the registrar if such a mark follows the requirement of registration.
• Acceptance
• Publication in the trademark journal
• If no opposition, the registrar issues a trademark certificate

INDUSTRIAL DESIGNS

Industrial designs can be defined as any combination of lines or colours or both, and any three-dimensional form, whether or not associated with colours, if it is intended by the creator to be used as a model or pattern to be multiplied by an industrial process, and it is not intended solely to obtain a technical result. It is generally the ornamental or aesthetic aspects of a product. In Nigeria, Industrial Design is governed by the Nigerian Patents and Designs Act.

REQUIREMENTS FOR REGISTRATION

Section 13(1) of the Patent and Design Act provides that for a design to be registerable it must;

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

Registration of Industrial Designs

An application must be filed at the Registry of Trademarks, Patents and Designs in Nigeria. To register a design in Nigeria, there are some intellectual property laws or steps an applicant must first take as stated below:

• The applicant must make sure the design conforms to the requirement of registration.
• The applicant must not publicise the design before seeking to register the design and where he does, It becomes part of the public domain and cannot be protected after six months of the such exhibition, or unless the priority of an earlier application can be claimed.
• The applicant must provide a specimen of the design.
• The applicant must also provide basic information including the name of the applicant, address, an indication of the kind of products associated with the design, and the title of the design.
• The applicant will also be required to pay the prescribed fees.
• A Power of Attorney will be required if the application is being made by an agent.
• Certified copy of the priority document if claimed.

CONCLUSION

In a nutshell, intellectual property covers an expanse of legal territory that includes copyrights, trademarks and patent law. While trademark law regulates and protects a brand identity, copyright is the preservation of rights to creative work such as literary or musical art, and a patent on the other hand deals with safeguarding rights of scientific/ technological invention. In the event of infringement on any of the rights mentioned above the creator of such a work can bring legal action against such perpetrators and sue for damages.

Furthermore, the Nigerian government as well as some non-governmental organisations have made laudable efforts toward the promotion of IP rights in Nigeria with some positive results being achieved; however, these efforts have been disadvantaged by low public awareness about IP rights that are protected under the law. Where the authors or creators of intellectual property are not aware that their work can be protected, or proliferators of such work not being aware that using other people’s work without their consent is a crime, it defies the entire purpose of intellectual property laws.

References

• Intellectual property law department at resolution law firm,(2022). Overview of the intellectual property law in Nigeria, Accessed 16^th October, 2022, from https://www.resolutionlawng.com/overview-of-the-intellectual-property-law-in-nigeria/

• World Intellectual Property Organisation. (2022). What is Intellectual property? Accessed 16^th October, October, 2022, from https://www.wipo.int/about-ip/en/

• Nosa John Garrick. (2022). Intellectual property in Nigeria. Retrieved on 16^th October, 2022. From https://oal.law/intellectual-property-in-nigeria-a-summary-of-protectable-rights-in-nigeria/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration

• Dayo Adu & Esther Randle (2022). Protection of intellectual property rights in Nigeria, Accessed 16^th October,2022.From https://www.mondaq.com/nigeria/trademark/1221590/protection-of-intellectual-property-rights-in-nigeria

Source: DNLLegalandstyle