Nigeria: Need To Know Series — Intellectual Property Rights

Last Updated: 25 April 2013
Article by Perchstone & Graeys

Intellectual property rights protect human endeavours and creativity, the creations of the mind: inventions; literary and artistic works; and symbols, names and images used in commerce.

1. What idea, invention, right, design etc can be protected?

Intellectual property rights, like any other property right, allow the creators, or owners of the intellectual property to benefit exclusively from their own work or investment in a creation. These rights are broadly categorized as:

a. Industrial Property: patents, trademarks, industrial designs and geographical indications.

b. Copyright: literary works (such as novels, poems and plays), films, music, artistic works (e.g., drawings, paintings, photographs and sculptures) and architectural design.

The law of patents protects inventions, i.e. products and processes that contribute in some practical and functional way to existing knowledge. The law of industrial designs protects shapes, patters, ornaments or other features, which enhance the outward or aesthetic appearance of a product. Trademarks consist of symbols, names, labels drawings, numerals and other marks, which serve the purpose of identifying a product and distinguishing it from other products in the market place. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and broadcasters in their radio and television programs.

For the purpose of legal referrals, the Copyright act Cap C28 LFN 2004, Patent and Designs Act Cap P2 LFN 2004 and the Trade marks Act Cap T 13 LFN 2004 will be relied on.

Section 1 (1) of the Copyright Act lists literary works, musical works, artistic works, cinematography works, sound recording and broadcasts as being eligible for copyright. Section 1 of the Patent & Designs Act lists the following inventions as being patentable:

a. if it is new, results from inventive activity and is capable of industrial application;

b. if it constitutes an improvement upon a patented invention and also is new, results from inventive activity and is capable of industrial application;

c. an invention is new if it does not form part of the state of the art;

d. an invention is capable of industrial application if it can be manufactured or used in any kind of industry, including agriculture.

The Copyright Act states that literary works (novels, plays, choreographic works, computer programmes, text-books letters), musical work, artistic works (paintings, drawings, etchings, lithographs, woodcuts, engraving and prints, maps, plans and diagrams), cinematograph film, sound recordings and broadcast will be eligible for automatic copyright protection in Nigeria.

The Patent and Designs Act protects inventions. An invention is patentable in Nigeria if it is new, results from inventive activity and is capable of industrial application; or it constitutes an improvement upon a patented invention and is also new, results from inventive activity and is capable of industrial application.

2. How?

An intellectual property can be protected by registration with appropriate body/registry on application at a prescribed fee. A copyright's protection is however automatic, although a registration of notification with the Nigerian Copyright Commission (NCC) is advised. The grant of registration by the Registrar is at his discretion, on conformity with the legislative requirements by the applicant.

The right to a patent in respect of an invention is vested in the statutory inventor; the person who, whether or not he is the true inventor, is the first to file, or validly to claim a foreign priority for, a patent application in respect of the invention, to be registered with the Patent Registry.

In registering a trademark, the proprietor would need to would appoint a trademark agent (e.g. a legal practitioner). The agent is to be responsible for the application and follow through of the registration process with the Trade Marks Registry on behalf of the proprietor.

3. Steps involved

Registration of a copyright in Nigeria is automatic, upon creation of the intellectual property in that regard. However, the NCC has designed a copyright notification process to enable creators of these works or who have acquired rights in these works to give notice of their copyright to the NCC or, where applicable, notice of any transfer of right thereof. This is in a bid to guarantee the owners rights; protection is however available to both published and unpublished works automatically on the creation of the work, provided the work is original and fixed in a tangible medium from which it can be perceived or otherwise communicated.

The applicant/proprietor of a trademark will be required to prepare a letter of authority or power attorney authorizing an agent (e.g. a legal practitioner) to apply for and follow up application for registration of trade marks at the Trade Mark Registry. The registration application is then made by submitting the requisite forms with representations of the marks to the registry, alongside the letter of authority or power of attorney. The application is scrutinised by the relevant body and the requisite acknowledgement and acceptance notices are issues as applicable. The trademark is then published in the trademark journal to enable the public challenge its registration. An absence of an opposition in this regard will lead to the issuance of the trademark certificate confirming registration

However, where there is an opposition, such an opposition must be made in the appropriate form, signed by the opponent and filed within two months of the advertisement. The Notice of Opposition must disclose the required information and include the grounds of opposition. The Applicant/proprietor of the mark is then required to file a counter statement in response to the opposition within a month of receiving notice of opposition.

Following the conduct of a search to confirm the patentability of the intellectual property, a patent application made for convention and non-convention, by submitting the requisite forms and a power of attorney designating the patent agent (e.g. the legal practitioner) to proceed with the application. A complete specification and claim together with plans and drawing if any are required, including a declaration signed by the true inventor is to be included. Where foreign priority is claimed, information concerning the patent, number, date country of earlier application and name of patentee is also included. Upon examination and grant of patent, a certificate is issued.

4. Right (s) conferred by registration/protection

The general principle is that an inventor should be able to reap all the rights that come with the creativity of original intellectual property. Thus, the proprietor of the trademark is entitled to institute proceeding to prevent, or to recover damages for, the infringement of the trade mark. A patentee has the right to preclude any other person from the act of making, importing, selling or using the product, or stocking it for the purpose of sale or use (where granted in respect of a product) and the act of applying the process or doing, in respect of a product obtained directly by means of the process (where granted in respect of a process). The scope of the protection is usually determined by the terms of the claims and the description, if any be used to interpret the claims.

A registered copyright is considered infringed a person (s):

a. imports into Nigeria, otherwise than for his private or domestic use,

b. exhibits in public any article in respect of which copyright is infringed;

c. distributes by way of trade, offer for sale, hire or otherwise or for any purpose prejudicial to the owner of the copyright

d. makes or has in his possession, plates, master tapes, machines, equipment or contrivances used for the purpose of making infringed copies of the work;

e. permits a place of public entertainment or of business to be used for a performance in the public of the work, where the performance constitutes an infringed of the copyright in the work, unless the person permitting the place to be used is not aware, and had no reasonable ground for suspecting that the performance would be an infringement of the copyright;

f. performs or causes to be performed for the purposes of trade or business or as supporting facility to a trade or business or as supporting facility to a trade or business, any work in which copyright subsists.

5. Duration of protection offered

Trademarks are registered for an initial period of seven years from the date of the application for registration, renewable for subsequent periods of fourteen years in perpetuity. A renewal may be applied for within three months before the expiration of the seven years.

A patent is granted for a period of twenty years from the date of filing the application. During the life of the patent, the patentee must pay a prescribed annual fee in order to maintain the patent. Failure to pay this fee within six months of the anniversary date will cause the patent to lapse. The expiration or lapse of a patent shall be registered and notified. A lapsed patent cannot be restored.

Copyrights expire as follows:

a. Literary, musical or artistic works other than photographs: seventy years after the end of the year in which the author dies; in the case of government or a body corporate, seventy years after the end of the year in which the work was first published.

b. Cinematograph films and photographs: fifty years after the end of the year in which the work was first published.

c. Sound recordings: fifty years after the end of the year in which the recording was first made.

d. Broadcasts: fifty years after the end of the year in which the broadcasting first took place.

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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