One Stop Overview Of Basic Intellectual Property Right Requirements.1
The incidence of start-ups and tech companies in Nigeria has led to the birth of various intellectual properties. Frequently, these fledgling companies are unaware of their existing or potential rights and opportunities. Some of the companies who are aware of their rights lack the basic information required for protection. It is thus expedient to re-establish and expatiate the requirements for intellectual property rights protection in Nigeria.
A patent is an exclusive right granted over an invention, whether a product or a process, that provides a new way of doing something, or offers a new technical solution to a problem.2 Essentially, patents give its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time.3
In Nigeria, the patentee has the right to preclude any other person from making, importing, selling or using the product, or stocking it for the purpose of sale or use where a patent has been granted in respect of a product.4 Patent right expires at the end of the twentieth month from the date of filing.5
Generally, to be entitled to patent protection:
- the invention must show an element of novelty; that is, some new characteristic which is not known in the body of existing knowledge in its technical field;
- the invention must involve an "inventive step" or be "non-obvious". This means that it could not be obviously deduced by or readily apparent to a person having ordinary skill in the relevant technical field.
- the invention must be capable of industrial application, meaning that it must be capable of being used for an industrial or business purpose beyond a mere theoretical phenomenon, or be useful;
- its subject matter must be accepted as "patentable" under law and the invention must be disclosed in an application in a manner sufficiently clear and complete to enable it to be replicated by a person with an ordinary level of skill in the relevant technical field.6
An invention is patentable in Nigeria if it is new, results from inventive activity and is capable of industrial application. An invention is also patentable if it constitutes an improvement upon a patented invention and also is new, results from inventive activity and is capable of industrial application.
In Nigeria, patents cannot be validly obtained in respect of:7
- Plant or animal varieties, or essentially biological processes for the production of plants or animals (other than microbiological processes and their products);8
- Inventions the publication or exploitation of which would be contrary to public order or morality (it being understood for the purposes of this paragraph that the exploitation of an invention is not contrary to public order or morality merely because its exploitation is prohibited by law).
- Principles and discoveries of a scientific nature are not inventions for the purposes of this Act.
A trademark can be any word, phrase, symbol, design, or a combination of these things that identifies your goods or services. The use and adoption of trademarks provides an avenue for customer recognition in the marketplace and provides a unique tool for distinguishing a start-up's products and services from those of the competitors.9 In principle, a trademark registration will confer an exclusive right to the use of the registered trademark. This implies that the trademark can be exclusively used by its owner or licensed to another party for use in return for payment. Registration provides legal certainty and reinforces the position of the right holder, for example, in case of litigation.10
In Nigeria, trademark protection subsists for a period of seven years upon registration but may be renewed from time to time for 14-year periods thereafter.11
For a trademark to be registrable in Nigeria, it must consist of at least one of the following listed essential particulars:
- 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;
- a word or words having no direct reference to the character or quality of the goods, and not being according to its ordinary signification a geographical name or a surname;
- any other distinctive mark.12
Copyright is a legal term used to describe the rights that creators have over their literary and artistic works. Copyright protects the owner's economic right and moral rights.13 The economic right allows the rights owner to derive financial reward from the use of their works by others and moral rights protects the non-economic interest of the author and essentially protects the integrity and ownership of their work.
In Nigeria, only literary works, musical works, artistic works, cinematograph films, sound recordings and broadcasts are works eligible for copyright protection.14 These works must in turn satisfy some pre-conditions to be eligible for copyright protection. The preconditions include originality, fixation and other qualifying or connecting factors. For the work to be original the work must be the expression of original or inventive thought. It must not be copied from another work but should originate from the author.15
The Copyright Act describes fixation as "a work that has been fixed in a definite medium of expression now known or later developed, from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device".16
A third requirement for protection, which, unlike the previous two requirements, applies to all categories of works, is qualifying factor. This means that, for a work to qualify for copyright protection under Nigerian law, there must be some connection between the work and Nigeria.17 This could be by virtue of the status of the author, the place of first publication of the work18 or the reference to international agreements.19 Works made by or under the direction or control of the Government, a State authority or a prescribed international body are also deemed to have the requisite nexus.20
- Trade Secret
A trade secret is any practice or process of a company that is generally not known outside of the company. Information considered a trade secret gives the company a competitive advantage over its competitors and is often a product of internal research and development.21
In general, to qualify as a trade secret, the information must be:
- commercially valuablebecause it is secret,
- be known only to a limited group of persons, and
- be subject to reasonable steps taken by the rightful holder of the information to keep it secret, including the use of confidentiality agreements for business partners and employees.22
Protection of trade secrets and other forms of confidential information, although not falling within intellectual property statutory protection in Nigeria, subsists at common law and is therefore part of the body of Nigerian laws.23
However, companies need to take preventive measures to protect trade secrets against theft or misappropriation, and a few ways in which they can do so include:
- Use of Non-disclosure agreements (NDAs): employees and business partners should sign a non-disclosure agreement that restrict them from disclosing a company's confidential information and trade secrets.
- Use of Non-compete agreements (NCAs): employers should ask employees, contractors and consultants to sign non-compete agreements to limit them (within reason) from entering into competition with the employer when their employment/service agreement ends.24
- Use of Robust IT security infrastructure: employers should use robust security infrastructure such as firewalls, antivirus software, sandbox, etc., to protect the company's trade secrets.
- Controlling the accessibility of important documents: employers should control the accessibility of important documents by placing proper encryption on such files.
The concept of intellectual property is oftentimes misunderstood and misconstrued. IP concepts need to be properly explained and the principles firmly established in order to be fully appreciated by new comers like startups and Medium and Small-Scale Business Enterprises. Experience has shown that unless IPRs and certain unique processes and technical know-how are identified and properly protected utilizing one or more of the intellectual property rights identified in this paper, any new business undertaking is likely to run into serious problems sooner rather than later, resulting in economic and legal chaos.
1 Oreoluwa Adebayo, Associate, Corporate Finance and Capital Markets, S.P.A. Ajibade & Co, Lagos, Nigeria.
2 See World Intellectual Property Organization, "Patent", available at https://www.wipo.int/patents/en/, accessed on 23rd June 2022.
3 See Wikipedia "Patent" available at https://en.wikipedia.org/wiki/Patent, accessed on 23rd June 2022.
4 Section1 (1), Patents and Designs Act, Cap. P2, Laws of the Federation of Nigeria (LFN), 2004.
5 Section 7 (1), Patents and Designs Act, Cap. P2, Laws of the Federation of Nigeria (LFN), 2004.
6 Supra at n. 2.
7 Section 1(4), Patents and Designs Act, Cap. P2, Laws of the Federation of Nigeria (LFN), 2004.
8 Note however, that a Breeders Right may be obtained in respect of new varieties of plants. See Section 13, Plant Variety Protection Act, 2021.
9 See United States Patent and Trademark Office, "What is a trademark?", available at https://www.uspto.gov/trademarks/basics/what-trademark, accessed on 28/06/22. accessed on 23rd June 2022.
10 See WIPO, "Trademarks?", available at https://www.wipo.int/trademarks/en/, accessed on 23rd June 2022.
11 Section 23(1), Trade Marks Act, Cap T13, Laws of the Federation of Nigeria (LFN), 2004.
12 Section 9(1), Trade Marks Act, Cap T13, Laws of the Federation of Nigeria (LFN), 2004.
13 See World Intellectual Property Organisation, "Copyright" available at https://www.wipo.int/copyright/en/, accessed on 30th June 2022.
14 Section 1(1), Copyright Act, Cap. C28, Laws of the Federation of Nigeria (LFN), 2004.
15 Peterson. J., University of London Press v. University Tutorial Press  2 Ch 601.
16 Section 1 (2) b, Copyright Act, Cap. C28, Laws of the Federation of Nigeria (LFN), 2004.
17 Section 3(1), Copyright Act, Cap. C28, Laws of the Federation of Nigeria (LFN), 2004.
18 Note that broadcasts are excluded in this category.
19 Section 4(1), Copyright Act, Cap. C28, Laws of the Federation of Nigeria (LFN), 2004.
20 A. O. Oyewunmi, Nigerian Law of Intellectual Property, University of Lagos Press at p. 43-49.
21 See Investopedia, "Trade Secret", available at https://www.investopedia.com/terms/t/trade-secret.asp, accessed on 28th June 2022.
22 See World Intellectual Property Organization, "Trade Secrets", available at https://www.wipo.int/tradesecrets/en/, accessed on accessed on 28th June 2022.
23 Supra n.20.
24 Supra n.22.
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.