In this post we will be looking at laws regulating intellectual property rights in Nigeria, types of intellectual property infringements and jurisdiction of court.
INTRODUCTION
The enforcement of intellectual property rights in Nigeria involves various judicial and administrative mechanisms. The intellectual property right is an intangible property right, which is protected under the law. The intellectual property connotes all forms of copyrights; Inventions in all fields of human endeavor; Industrial designs; and Trademarks, which include service marks and brand names.
The enforcement of intellectual property rights in Nigeria includes various measures by which intellectual property rights are protected under the law. Essentially, there are four main types or forms of intellectual property common in Nigeria- they are trademarks, copyrights, patents and industrial designs. Intellectual property rights are those mechanisms that allow owners, creators or holders of patents, trademarks or copyrighted works to benefit from their work and take necessary action in case of infringements. The laws governing or regulating the enforcement of intellectual property rights and protections in Nigeria are codified in various statutes.
LAWS REGULATING INTELLECTUAL PROPERTY RIGHTS IN NIGERIA
- The Trade Marks Act
- The Patents and Designs Act
- The Merchandise Marks Act
- The Copyright Act
- The Federal High Court (Civil Procedure) Rules
- The Cybercrimes (Prohibition, Prevention, E.T.C.) Act of 2015
TYPES OF INTELLECTUAL PROPERTY INFRINGEMENTS
Generally, Intellectual Property (“IP”) covers products of intellectual creations. However, it can also mean a generic term that describes creations of the intellect concerning which the law ascribes the exclusive right of appropriation to the designated owners. Intellectual Property law is a body of laws that governs all the relevant aspects (i.e., ownership, registration, protection, licensing, assignment, lifespan, etc.) of IP rights.
In Nigeria, several laws have a bearing on the protection and administration of the different rights that make up intellectual property. However, the three main statutes governing the intellectual property law in Nigeria are the Copyrights Act, the Patents and Designs Act, and the Trademarks Act. These laws govern the protection and administration of the predominant Intellectual property protected in Nigeria as follows:
Copyright: Copyright in an intellectual work is that exclusive right of the author of the original work to control or enable the doing of certain expressly stated acts in respect of the whole or substantial part of the work either in its original form or in any other recognizably derived from the original form but subject to certain statutory exceptions. Copyright is governed by the Copyright Act Cap 68, Laws of the Federation of Nigeria, 2004. Section 1(1) (a-f) of the Copyright Act provides for works protected by copyright which include;
- Literary works
- Musical works
- Artistic works
- Cinematograph films
- Sound recordings
- Broadcasts
Trademarks: A Trademark is any mark, sign, or combination thereof that the owners’ design to identify their product and differentiate it from other manufacturers’ products, especially competitors. There is a peculiar measure of identity associated with your goods. Section 67 of the Trademarks Act Cap T3, Laws of the Federation of Nigeria 2004, defines a trademark as:
A word, letter, label, numeral, color, 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.
Trademark distinctiveness is an essential concept in the law governing trademarks and service marks. A trademark may be eligible for registration if it performs the critical trademark function indicated above and is distinctive. An essential role of any brand is to point the consumer to the origin of the marked goods and services; to do this, a trademark must distinguish the said goods or be capable of doing so.
Patents: Patents law is channeled towards protecting inventions that extend to things like machines, devices, chemical compositions, and manufacturing processes. Essentially, the law protects the owner against the independent development of the patented subject matter. It is a grant from a government that confers upon an inventor the right to exclude others from making, using, selling, importing or offering an invention for sale for a fixed period.
This invention may be a new product or process. The patent protects the inventor from others who may attempt to make, use, distribute or sell the invention without the patent owner’s consent. Patentable inventions are inventions in respect of which the law will grant a patent. The Patent & Designs Act Cap P2, Laws of the Federation of Nigeria 1988, outlines conditions for an invention to be deemed patentable. According to section 1(1) of the Patent & Designs Act, an invention is considered patentable if it meets the following conditions;
- It must be new
- It must be the result of an inventive step; and
- It must be capable of industrial application.
Industrial Designs: Industrial designs are those elements incorporated into mass-produced items that tend to enhance attractiveness by their appearance. Industrial design protection covers designs that are original and novel. It is called industrial design because for it to qualify for protection, the design must be capable of application for mass or industrial reproduction. According to section 12 of the Patents & Designs Act, industrial designs are created as models or patterns to be multiplied by an industrial process and not intended to achieve a technical result, i.e., relate to or improve on the functional feature of a product without which the product cannot perform its functions.
JURISDICTION OF COURT TO ENFORCE INTELLECTUAL PROPERTY RIGHTS.
Generally, the jurisdiction to hear intellectual property law cases is given under section 251 (1)(f) of the Constitution of the Federal Republic of Nigeria 1999 (as amended 2011), exclusively to the Federal High Court.
It provides thus;
“Notwithstanding anything to the contrary contained in this Constitution . . . the Federal High Court shall have and exercise exclusive jurisdiction to the exclusion of any other court in civil causes and matter:”
“Any Federal enactment relating to copyright, patent, designs, trademarks and passing-off, industrial designs and merchandise marks, business names, commercial and industrial monopolies, combines and trusts, standards of goods and commodities and industrial standards”.
This provision is in the same manner, similar to the provisions of section 7 of the Federal High Court Act. Also, various intellectual property laws specifically confer jurisdiction on its subject matter only on the Federal High Court. Section 46 of the Copyright Act provides that “the Federal High Court shall have exclusive jurisdiction for the trial of offences or disputes under this Act”. Section 67 of the Trademarks Act in interpreting “court” as used under the Act states that “‘court’ means the Federal High Court”.
The use of the word “means” is restrictive and admits of no other court or further inclusion. Also, section 32 of the Nigerian Patents and Designs Act defines court to mean the Federal High Court. Considering the above, the Federal High Court is conferred with the exclusive jurisdiction to hear and determine causes and matters, whether criminal or civil, relating to intellectual property rights in Nigeria. The Court of Appeal, and ultimately the Supreme Court, exercise appellate jurisdictions concerning matters emanating from the Federal High Court.
NATURE OF INTELLECTUAL PROPERTY INFRINGEMENTS
- Infringement Of Copyright: Section 21 of the Copyright Act provides for Civil and Criminal measures simultaneously in case of copyright infringement, Under the Copyright Act, it is an infringement of copyright to do or adapt a copyrighted work without the authorization of the author.
- Infringement Of Trademark: The Trade Marks Act provides mostly for the civil remedies for infringement. The rights conferred by the registration of a trademark on the proprietor are the right to exclusive use and the right to sue for infringement. Therefore, registration is prima facie evidence of title to the particular trademark so registered and entitles the holder or owner of such mark to institute an action to protect its breach. This exclusive right conferred under section 5(1) Trademarks Act is subject to any conditions and limitations to which the registration is subjected. Sections 60 and 61 of the Trade Marks Act criminalize falsification of the register and false representation of a mark as registered. The penalty for the latter is a fine of only Two Hundred Naira (?200) and the former is imprisonment not exceeding seven years upon conviction. The Act does not impose any criminal sanction on infringement of trademarks.
- Infringement Of Patents & Designs: The exploitative acts concerning patents and designs can only amount to infringement when they are done for commercial or industrial purposes, doing any of the acts for personal or family use or a gift to another does not amount to infringement. Infringement of the rights of a patentee or design owner is actionable at the suit of the patentee or design owner as the case may be and in the event of being successful at the court, they are entitled to damages, injunction, accounts of profits or other similar orders the court may deem fit to make in such circumstance.
REMEDIES FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS
The remedies available for the enforcement of intellectual property rights through the judicial process can be briefly highlighted as follows:
- Order for inspection and seizure
- An order of injunction
- Award of damages
- The account of profits
- Delivery up