Nigeria: Securing International Intellectual Property Rights Protection Over Nigerian Information And Communication Technology Products - Part 1

Last Updated: 16 May 2016
Article by O. Marx Ikongbeh

PART 1 "Quick Overview of Intellectual Property Rights in Nigeria"

  1. Introduction

With the current emphasis on non-oil exports in Nigeria, another frontier for enhanced foreign exchange earnings for Nigeria could easily be the appropriate exploitation of intellectual assets in the Information and Communication Technology sector.

However this exploitation requires a robust Intellectual Property Rights protection strategy both at governmental and business levels. Zeroing in on the business level strategy, our question is:

How can proprietors (owners, developers, producers etc), of Nigerian Information and Communication Technology products secure International Intellectual Property Rights protection for their exports?

This article would reveal several International Intellectual Property Rights protection systems that could secure Nigerian Information and Communication Technology products from Intellectual Property Rights infringement as it crosses the borders.

Before we conclude also, we shall x-ray the dangers of not securing the appropriate Intellectual Property Rights protection for Information and Communication Technology products. The unfortunate domain name dispute between the Nigerian e-commerce giants, Konga and Jumia would be used as a case in point. It presents an excellent example and highlights the need for comprehensive International Intellectual Property Rights Protection for Nigerian Information and Communication Technology firms.

  1. Key Deliverables

We shall presently look at the following in this part of the article:

  1. Brief introduction (what is Intellectual Property Rights anyway?)
  2. Types of Intellectual Property Rights (Copyrights, Trademark, Patents and Designs).
  3. The relationship between Intellectual Property Rights and Information and Communication Technology products.

In Part 2 [International Intellectual Property Rights Protection Mechanisms] we shall consider:

  1. The territoriality of Intellectual Property Rights and the rationale for international protection
  2. The different International Intellectual Property Rights systems and Organizations.
  3. Emerging areas of International Intellectual Property Rights protection (domain name protection etc)
  4. Summary of how and why every Nigerian Information and Communication Technology firm should key into international Intellectual Property Rights protection.

Without doubt if this age is to be referred to with a single decimal such as the stone age, the iron age etc, it would undoubtedly be called the Information and Communication Technology age.

  1. What is Intellectual Property Rights anyway? (Brief Introduction)

As opposed to physical/tangible property (e.g. cars, houses, stock of goods etc) the law recognizes that property right also exists in intangible form, these rights arise as a result of the intellectual efforts that an individual (includes a company) has applied and the unique products that are birthed from such exertion.

The law recognizes that it will be unfair to allow any other person to derive benefits from such products without adequate rewards to the originator. Broad examples of such property include; reputation, goodwill, creative ideas, "look and feel", the right to exploit new solutions to existing challenges etc.

We shall give precedence to the Intellectual Property Rights that are relevant to the Nigerian Information and Communication Technology sector.

  1. What are the types of Intellectual Property Right relevant to Nigerian Information and Communication Technology Firms?

Historically, Intellectual Property Rights is treated under four principal categories, with each having a separate body of laws regulating it. These include:

  1. Copyright

Copyright is concerned with protecting creative works of the human intellect. It relates to literary and artistic works. Bear in mind that "literary or artistic works" is not limited to literature and music; it also includes such technical expressions of human creativity as computer software design, electronic databases, multi-media productions, maintenance manuals, architectural drawings etc.

What is important is that Copyright protects "Original" "Works" that have been "Fixed" in some form. Original means that it has not been copied from another Work. Work means that it has gone beyond a mere idea and some effort has been expended to develop the idea into a concrete end product. Fixed means that it has been recorded in some permanent form such as being written down or recorded through any device that can reproduce it at a later time for human appreciation.

The protection is not perpetual; it usually lasts for a number of years that is computed from the death of the author depending on the law of the particular country. The duration by the Nigerian Copyrights Act 1988 is 70 years but 50 years in certain cases including where the author is an Information and Communication Technology firm. Firms must thus take advice on how to structure copyright authorship.

Copyright is usually notified by an encircled "C" sign ©. While this is not necessarily a requirement of law in Nigeria, it serves as a warning to the public on the author's rights. Registration is not a requirement for protection but "depositing" a copy of the work with the Nigerian Copyright Commission would be a sensible way to prove authorship and fixation (i.e. publication).

  1. Trademark

Trademark refers to the protection of the unique identification symbols used to distinguish the goods of one organization from that of others. It could consist of words, logos, designs, letters, numerals, slogans, devices, symbols etc or a combination of any of these.

It is called a Trademark when it protects goods e.g. Zinox (a Nigerian brand of personal computers) and a Service mark when it protects services e.g. Paga (a Nigerian mobile money solution).

To be registrable, a Trademark must be "Distinctive" and it must not be "Deceptive". Distinctive means that the Trademark does not merely describe the product. (e.g. "Glo" while it may be distinctive for a telecoms service operator would be descriptive for a light bulb manufacturer). Deceptive means it tends to suggest a quality it doesn't possess.

Trademarks can have a perpetual duration but upon registration are valid for 7 years in the first instance and subject to renewal at 14 years intervals thereafter. Trademark also forms the basis of domain name protection as we shall see later on.

Trademarks before registration may be notified with a TM sign inserted as a superscript on the top right side of the mark TM or an SM in the case of Service marks SM. But both are signified with an encircled "R" in superscript ® when it has been duly registered. This is not necessarily a requirement of law in Nigeria.

Registration is not a requirement for protection as common law action of passing off and "well-known" marks receive limited protection. However, the right to bring a simplified action for "infringement" under the Trademark Act 1965 is only available to registered Marks. It would be unwise for an Information and Communication Technology firm to rely on unregistered marks considering the ease of infringement possible in the cyber-world.

  1. Patents

A Patent is a monopoly over the exploitation of an invention given by the government to the inventor in return for the inventor disclosing the full working of his invention. An invention can be defined as a new solution to a technical problem. An invention could be an entirely new solution (e.g. table top internet router: Wifi) or an improvement of an existing solution (e.g. carry-along pocket-sized internet router: Mifi).

To be Patentable, the invention must be "Novel", possess an "Inventive Step" and be capable of "Industrial Application". Novel simply means it must be new. Inventive step means that it goes beyond the general knowledge in that field; it must be "non-obvious" to an average practitioner of that field. Industrial Application means that it must be capable of practical use; it produces a defined end that is useful.

Patents are granted for a fixed number of years (20 years by the Patents and Designs Act 1970) and are subject to annual renewal within the period of validity. A grave danger with Patents is that once the invention is disclosed before registration, the right to Patent would be lost forever. So Patents must be registered even before trial versions are released to the public.

The words "Patent Pending" may be inserted to notify that the product is subject of a patent application that is still in progress. This is not expressly required by Nigerian law since Patents do not undergo substantive examination.

  1. Industrial Designs

An Industrial Design (also called Design Patent) protects the ornamental or aesthetic aspects of a useful article. It protects the unique "look and feel" of the product. It is different from a trademark because it doesn't need to be distinctive. It could be 2 or 3 dimensional e.g. packaging, pattern or shape.

To be registrable, it must be "new" or "original". It must "appeal to the eye" meaning that it has an attracting and not just a functional effect. It must also be capable of reproduction by industrial means.

Industrial Design is granted for a total of 15 years renewable in 5 year intervals under the Patents and Designs Act 1970. Under certain conditions, the subject of an industrial design can also be protected by Copyright.

Practical Illustration

It must be borne in mind that these categories of Intellectual Property Rights discussed above are not exclusive; they are merely the most formally recognized protection mechanisms. Other forms of protection include; passing off (protection for unregistered trademarks); trade secrets (protection by the producer who creates a wall of secrecy around his invention; you must have heard about the famously guarded Coca-Cola secret recipe) and other protection measures such as the law of unfair competition.

We must also note that one product can be covered by the different categories of Intellectual Property Rights. Take a tablet device. Its instruction manuals and the algorithm that runs its software would be covered by Copyright, its logo and distinctive name e.g "T-Pad" is Trademarked, its shatter-proof plexiglass screen and unique water resistant features is Patented and its ergo-dynamic curved shape and brightly coloured stripe pattern back case is registered as an Industrial Design and the secret chemical formula for the liquid wipe that restores the screen from scratches is locked up in a safe deposit box. – That would be an effective Intellectual Property Rights protection strategy!

  1. Intellectual Property Right and Information and Communication Technology products:

From what we have examined thus far, it is logical to conclude that Information and Communication Technology products which largely are intangible and highly susceptible to hacking, piracy, "free-surfing" and counterfeiting require a comprehensive Intellectual Property Rights protection strategy.

Most Information and Communication Technology products are distributed seamlessly over the internet, except a robust Intellectual Property Rights protection strategy is developed and enforced, anybody could take an Information and Communication Technology product reverse-engineer it and offer it for sale to unsuspecting buyers who cannot tell the source of the product, since they don't have to visit a brick and mortar store for purchase.

For the Nigerian Information and Communication Technology firm seeking to cross the border, the threat to their Intellectual Property Rights takes on a hydra headed dimension. Thankfully Part 2 of this article [International Intellectual Property Rights Protection Mechanisms] presents an effective remedy.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.