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 endeavour; 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
COPYRIGHT: The Copyright law provides that infringement copyright occurred if anybody who without the authorization of the owner of the copyright does any act, which is controlled by copyright.
TRADEMARK: under the law, a registered trademark would be deemed to have been infringed if any person not being the owner or person authorized by the owner, uses a mark identical with or nearly resembling a registered trademark that it can likely mislead or causes confusion in the market place concerning goods or services the said trademark represents.
PATENT & INDUSTRIAL DESIGN: where a person other than the patentee or owner of an industrial design or his assignees or person authorized by the owner does or causes any act to be done with regards to the use of a registered patent or industrial design, such an act shall constitute an infringement of such patent or industrial design.
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.
There are several enforcement mechanisms an intellectual property right holder can employ in enforcing an intellectual property right.
These mechanisms include Alternative Dispute Resolution, Criminal Complaint and Civil Action via the courts.
To establish a breach of intellectual property right in a civil court, the claimant has to establish the followings:
(a) It is the owner of a copyrighted work, and
(b) The defendant has infringed its copyright
Upon the occurrence of any of the infringements, the intellectual property right owner may bring a lawsuit at the Federal High Court, which is the court that has jurisdiction to hear such matter against the violator.
The owner may be entitled to reliefs by way of damages, injunction, rendering of account and such relevant reliefs as the court may deem necessary in the circumstance.
Government responsibility in IPR comes in because of the criminalizing of IPR infringement; it is an offence against the State to infringe someone's else IPR.
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.
In the case of Anton Piller K.G. v. Manufacturing Processes Ltd, known as Anton Pillar Order, a plaintiff brought an ex parte application supported by an affidavit showing reasonable cause for suspecting the presence in any premises of items used or intends to be used for making infringing copies of his work. The court granted the order the plaintiff was allowed to conduct a form of civil search different from criminal search usually conducted by the police in the premises of suspected person committing the infringement.
The court, if satisfied, may authorize the applicant to enter the premises at any reasonable time with an officer, not below the rank of Assistant Superintendent of Police in pursuance of the order to seize, detain and preserve any infringing copy or contrivance and to inspect any or all documents in custody or under the control of the infringing defendant.
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.
TRADEMARK INFRINGEMENTS UNDER THE CYBERCRIMES LAW
However, The Cybercrimes (Prohibition, Prevention, E.T.C.) Act 2015 imposes criminal action for unauthorized usage of trademark online. Section 25 of the Act provides as follows:
"A person who, intentionally takes or makes use of a name, business name, trademark, domain name or other word or phrase registered, owned or in use by any individual, body corporate or belonging to either the Federal, State or Local Government in Nigeria, on the internet or any other computer network, without authority or right, and for the purpose of interfering with their use by the owner, registrant or legitimate prior user, commits an offence under this Act and is liable on conviction to imprisonment for a term of not more than 2 years or a fine of not more than =N5,000,000.00 or both".
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 authorizing the applicant to enter the premises at any reasonable time accompanied by a police officer, not below the rank of an Assistant Superintendent of Police; seize and detain and preserve any such infringing copy or contrivance; inspect all or any documents in the custody or under the control of the defendant relating to the action. Virtually all the laws governing intellectual property rights provide for this order.
- An order of injunction: this may include perpetual injunction, interlocutory injunction, Mareva injunction, and Anton pillar injunction. In Hoffman-La Roche & Co. AG v. Secretary of State for Trade and Industry, Lord Wilberforce stated, "the object of interlocutory injunction is to prevent a litigant who must necessarily suffer the law's delay from losing by that delay the fruit of his litigation." The whole idea is to freeze the situation before damages can flow, pending a subsequent trial on the merits.
- Award of damages: this is a pecuniary monetary satisfaction awarded by the court to the plaintiff for his financial loss occasioned by the infringement of his rights.
- The account of profits: this is to prevent unjust enrichment and it is not available to a plaintiff who has otherwise been adequately compensated in damages for the infringement.
- Delivery up: it is an order against the defendant to hand over all infringement articles to the plaintiff.
Intellectual Property Rights are exclusive private proprietary rights granted by law to the owners thereof, over intangible assets, which are innovative products of the brain or the mind, as opposed to personal or real properties. The primary function of intellectual property right under the law is to protect from exploitation the rights of a person's work.
Enforcement of intellectual property rights can be carried out via administrative, regulatory, court and alternative dispute resolution methods, which are considered to be faster. However, the most effective method of enforcement of intellectual property rights in Nigeria is through the judicial process.
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.