Intellectual property refers to anything created by the human mind, including inventions, musical compositions, literary works, symbols, names, designs, images, and even concepts.
Any Intellectual Property ("IP") requires time, work, effort, real capital, education or expertise to be created. Hence, an Intellectual Property Owner must safeguard his or her intellectual inventions.
This article seeks to enlighten the reader on the following:
- What are Intellectual Property rights;
- Types of Intellectual Property rights;
- Protection of Intellectual Property rights;
- Enforcement of Intellectual Property rights;
- Remedies for Infringement on Intellectual Property rights.
- WHAT ARE INTELLECTUAL PROPERTY RIGHTS?
Intellectual property rights (also known as "IP rights") are exclusive proprietary rights provided by law to the owners of industrial, scientific, literary, and creative works that are innovative brain or mental products.
- TYPES OF INTELLECTUAL PROPERTY RIGHTS
IP rights can be categorised as follows:
Copyrights work are literary works; musical works; artistic works; cinematograph films; sound recordings; and broadcasts. Section 1 of the Copyrights Act
The law that governs Copyright in Nigeria is the Copyright Act (as amended), Cap. C28, Laws of the Federation of Nigeria 2004.
Copyright in literary, artistic, and musical works lasts for 70 years from the date of the author's death, cinematograph films and photographs subsists for 50 years from the date of the first publication of the work, copyright in sound recordings and broadcasts subsists for 50 years from the date of the making of the first recording or the broadcast. Section 27 of the Copyrights Act.
Trademark means, except for a certification trademark, is a mark used to distinct sign, mark, design, or expression which distinguishes goods and services. Section 67 of the Trade Marks Act.
The law that governs Trademark in Nigeria is the Trade Marks Act, Cap. T13, Laws of the Federation of Nigeria 2004.
Marks that are deceptive or scandalous, generic and descriptive, geographical names in their ordinary signification or chemical substances cannot be registered as trademarks.
Trademarks are registered for an initial period of seven years from the date of the application for registration. After this, they can be renewed for subsequent periods of fourteen years.
A patent is an exclusive right granted in respect of an invention, which may be a product or a process that provides a new and inventive way of doing something or offers a new and inventive technical solution to a problem. Section 1 of the Patents and Industrial Designs Act.
The law that governs Patents in Nigeria is the Patents and Designs Act, Cap. P2, Laws of the Federation of Nigeria 2004.
Patents remain in force for twenty (20) years from the date of filing the application.
- INDUSTRIAL DESIGN:
An industrial design consists of the creation of a shape, configuration, or composition of pattern or colour, or combination of patterns and colours in three-dimensional forms, containing aesthetic value. It can be a two- or three-dimensional pattern used to produce a product. Section 12 of the Patents and Industrial Designs Act.
A registered design is protected for five (5) years from the date of the application for registration. Protection may be renewed for two further consecutive periods of five (5) years each upon payment of the prescribed fees. Section 20 of the Patents and Industrial Designs Act.
- TRADE SECRETS
A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information that is not generally known or reasonably ascertainable by which a business can obtain an economic advantage over competitors or customers. It may be confidential business information that provides an enterprise a competitive edge. Trade secrets include sales methods, distribution methods, consumer profiles, advertising strategies, lists of suppliers and clients, and manufacturing processes.
- PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
Intellectual Property rights can be protected by registration.
The Trade Mark Act establishes the office of the Registrar of Trade Marks to which applications for the registration of trademarks are to be made.
An application for a patent is made to the Registrar of Patents and accompanied by a description of the relevant invention with any appropriate plans and drawings. The right to patent an invention is vested in the first to file a patent application in Nigeria.
- INDUSTRIAL DESIGN
An industrial design can be protected by registration, with the Nigerian Patents and Designs Registry. An industrial design is registrable if it is new and not contrary to public order or morality.
Copyright can be protected by registration with the Nigerian Copyright Commission. This protects the exclusive right granted to an originator of creative work to reproduce the work for a certain period.
- TRADE SECRETS
Nigeria does not have any existing legislation for the protection of trade secrets. However, trade secrets can be protected under contracts, torts, and other legal principles.
- ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
Some of the mechanisms for the enforcement of Intellectual Property rights include Alternative Dispute Resolution, Criminal complaints, and Civil Action through the courts or relevant agencies such as the Police, the Nigerian Copyright Commission, trademark, patent, and design registry.
The Federal High Court has exclusive jurisdiction to hear intellectual property matters by virtue of Section 251 (1)(f) of the Constitution of the Federal Republic of Nigeria 1999 (as amended 2011).
- REMEDIES FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS
The remedies available for the enforcement of intellectual property rights are damages or accounts of profits, delivery and/or destruction of infringing items, inspection and seizure, and injunction.
The type of remedy will depend on the nature of the Intellectual Property infringed and the peculiarity of the circumstances in question.
The need to protect Intellectual Property in Nigeria is gaining traction daily. It is therefore imperative for Intellectual Property Owners to protect their intellectual creations from infringement and exploitation from third parties.
Also, the protection of Intellectual Property will prevent competitors or anyone else from using the ideas of the Intellectual Property owners for their profit without consent.
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.