Intellectual property rights are the rights given to persons over the creations of their minds. It is an exclusive right given to an innovator over the use of his/her own creation. The essence of Intellectual property right is to reward creativity.
These rights are outlined in Article 27 (2) of the Universal Declaration of Human Rights, which provides that:
“… Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”
Some common types of intellectual property rights are:
Trademarks such as name, symbol, figure, letter, word, or mark used by a manufacturer in order to distinguish his or her goods from those manufactured or sold by others.
Copyrights such as, Literary works , musical works , graphic works, sculptural works, pictures, audio-visual works or other original works of authorship fixed in any tangible medium.
Patents right conferred on an inventor to exclude others from making, using, or selling an invention.
Design such as architectural blueprints, engineering drawings, business processes, circuit diagrams, sewing patterns and .
What constitutes infringement of Intellectual Property Rights.
Intellectual Property rights are infringed when a work protected by Intellectual Property laws is used without the express permission of the person who owns those rights.
Infringement of Intellectual Property Right can occur in different ways some of which are:
Copyright infringement: This occurs in the unauthorised use of a whole or a substantial part of a copyright work. The unauthorized use may be in form of copying, issuing copies, renting or lending, performing, showing, playing, communicating or adapting a copyright work. An instance where the court enforced a claim for copyright infringement is the case of PETER OBE V. GRAPE VINE COMMUNICATION LIMITED (2003-2007) 5. I.P.L.R.
The plaintiff in this case is a professional news Photographer. He covered some pictures during the civil war and publishes the pictures in a book titled “ Nigerian Decade of Crisis in Pictures” .
One of such pictures taken during the civil war was titled “ Frontline Soldiers after clearing ambushed zone near Nsukka”
The defendant while working on his “This Week Magazine” approached the plaintiff and obtained a copy of the plaintiff’s book. The defendant also sought to use of the plaintiff publishes photographs in its maiden edition of its Grape Vine Magazine but the defendant request was turned down.
In spite of the plaintiff’s refusal to accede the defendant’s request, the defendant went ahead and used the photograph in its magazine which necessitated the plaintiff to institute this action.
The trial court upheld the plaintiff has copyright over the photographs and awarded Ten Million Naira as damages against the defendant.
Infringing a patent means manufacturing, using, selling or importing a patented product or process without the patent owner’s permission. In Rev. (Dr) CJA Uwemedimo and Comandclem Nigeria Limited Suit No. CA/C/15/2009, the claimant filed a claim against the defendant maintaining that they are the statutory inventors of the products of letters of patent No. RP13522 of August 5, 1999 and for the infringement of the letters of patent by the defendant.
The Court of Appeal Calabar Division in 2009 upheld the claimant’s right as the registered patentee in the invention called Anti-Corrosive Special Paint for Q.I.T (Transteel Blue, White Enamel Q.A.D). The Suit is presently at the Supreme Court.
A design right is infringed by a third party who uses a registered design for commercial gain without the express permission of the rights holder. For instance, a design right will be infringed by a competitor if it product uses the same design as the registered design, or uses any design which does not produce a different overall impression on the informed user. Thus, the competitor will not escape liability for infringement merely by making trivial changes to the registered design. Recently, OK Foods Limited dragged Cadbrury Plc before Federal High court, Lagos Division over the use of generic trade dresses, colours and shapes in the production of Top Mint Candy sweet produced by Ok Foods and Tom Tom Candy sweet produced by Cadbury Plc.
Also, a Japanese court sometimes in 2008 ruled in favor of Coca-Cola. The US beverage maker which had been demanding registration for its so-called “contour bottle” since 2003.
Coca-Cola’s case got a boost because the company stuck to the same design since the start of the product, in 1916.
The bottle became a registered trademark in the US in 1960, and is likewise honored in Russia, Great Britain, China and other nations, according to Coca-Cola.
Trademark infringement occurs in the unauthorized use of a trademark or service mark on competing or related goods and services. Remedies are available to the owner to prevent an ongoing infringement, including damages for past infringements.
However, if a trade mark is not registered one can still take action against infringement by bringing an action in “passing off”. Passing off comprises three major elements i.e goodwill, misrepresentation and damage. Instance where the court has enforced trademark infringement is NIGER CHEMIST V NIGERIAN CHEMIST  1 All NLR 171. The plaintiff carried on business as a chemist and had branches in Onitsha and in other Eastern States, the defendant opened business as a chemist under the name of ‘Nigerian Chemist’ and had their office on same street as the plaintiff’s in Onitsha. This necessitated the plaintiff’s action for passing off of its business by the defendant on ground that the latter’s use of ‘Nigerian Chemist’ was calculated to deceive members of the public into believing that there existed a relationship between ‘Niger Chemist’ and ‘Nigerian Chemist’. The action was resolved in the plaintiff’s favour and adequate compensation granted.
One fundamental way to prevent a trademark infringement is by using the symbol ® or TM after a registered mark. This is to raise a caveat to the public that the mark is registered.
Enforcement of Intellectual Property Rights.
Enforcement generally is the act of compelling observance of or compliance with a law, rule, or obligation. With relation to Intellectual Property, enforcement of Intellectual Property Right is the act of compelling compliance with the provisions of the law.
The essence of enforcing your Intellectual Property Right is to enable an inventor of an idea to reap the fruits of his inventions and creations of its employees. Your intellectual property assets can only lead to benefits when the acquired intellectual property rights can be enforced, otherwise, infringers and counterfeiters will always take advantage of the absence of effective enforcement mechanisms to benefit from your hard work.
Intellectual Property Rights can be enforced in Nigeria through the following ways:
Tribunals such as the Trademarks and Patent Tribunal. Recently, the Trade mark registry in Nigeria for the first time ever publishes a compendium of rulings delivered by the Trademark Registry on Trademark Oppositions.
Regulatory bodies such as the Nigerian Customs Service (NCS), Nigerian Immigration Service (NIS), the Consumer Protection Council, and the Nigerian Police (for counterfeiting claims).
The court system i.e the Federal High Court, Court of Appeal, and Supreme Court. Section 251 (1) (f) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) vests exclusive jurisdiction over disputes relating to copyright, patent, trademarks, passing-off, industrial designs and merchandise marks in the Federal High Court. In addition to its original jurisdiction, the Federal High Court sits in appeal over the proceedings of the Tribunals established by the Trademarks Act and the Patents and Designs Act. The Court of Appeal and the Supreme Court, also exercise appellate jurisdiction in relation to matters emanating from the Federal High Court.
Action for Infringement of Intellectual Property Rights.
An action for infringement of Intellectual Property Rights may be instituted in either civil rights, criminal right or both action in civil and criminal right at the same time.
Once it is discovered that someone has infringed your Intellectual Property rights the first step is to send a letter commonly known as cease and desist letter to the alleged infringer .
It is advisable to seek the assistance of an attorney to write such a cease and desist letter in order to avoid court proceedings initiated by the alleged infringer protesting that no infringement has taken place or is imminent.
This procedure is often effective in the case of non-intentional infringement since the infringer will in most such cases either discontinue his activities or agree to negotiate a licensing agreement.
Another way of enforcing a civil suit is by raising an opposition to publication of application in the Trademark Journal.
The alleged infringer can also apply for an Anton Pillar Order to enter into the premises of the infringing party to collect and seize suspected infringing items.
Nigeria Copyright Commission v. Chikwesiri Josephat Suit No: FHC/L/409/2015
The Nigeria Copyright Commission (NCC) had earlier in October, 2013 received a letter of petition from Penuma Publishers Limited alleging that the works of their authors, Pastor Sam Adeyemi and Pastor Sam Adelaja titled “ Life and death are in the power of the tongue” “ideas rule the world” and “ success guaranteed by the blood” were being pirated and sold. The allegations were investigated by NCC and was found to be true.
The accused person were arrested and charged to court on two count of piracy and possession of infringing copies.
The trial judge having found the accused persons guilty, sentenced him to one year imprisonment for copyright infringement with an option of fine.
The case of My Pikin Baby Teething Mixture Case No. FHC/L/70C/09
Barewa Pharmaceutical Limited, the manufacturer of My Pikin Baby Teething Mixture sold a paracetamol based syrup that killed about 80 babies in 2008. This syrup was contaminated with engine coolant diethylene glycol.
Justice Okechukwu Okeke of the Federal High court, Ikoyi Lagos in his judgment wound up the company and convicted the two officers of the company for conspiracy and seeking of dangerous drugs.
Remedies Available to Infringement of Intellectual Property Rights.
Injunction: It is an order of the Court to prohibit or suspend the use of a mark. It usually the first relief sought to suspend the use of the mark pending the outcome of the case and a perpetual injunction when the case has been concluded to totally stop the use of the mark.
Anton Pillar Order: This remedy was granted in Western Lotto Nig. Ltd v. K.C. Gaming Networks Ltd Suit No FHC/ABJ/CS/925/2019
Sheriffs of the Federal High Court, Lagos raided Bet9ja Lagos office to recover a seal suspected to infringe the copyright of Lotto9ja owned by rival Western Lotto Nigeria Ltd.
The raid followed an Anton Piller injunction granted by Justice Taiwo Taiwo of a Federal High Court in Abuja on August 8, 2019 in favour of Western Lotto.
The sheriffs and Western Lotto officials, accompanied by policemen, executed the order at a Bet9ja premises at 9, Funsho Williams Avenue, Surulere, Lagos.
Damages: This remedy was enforced by the court in NNEOMA ANOSIKE V. WEMA BANK PLC. The plaintiff in this case (Nneoma Anosike) claimed the sum of N20m against Wema Bank Plc for breach of her right to privacy by the bank advertising her photograph without her consent. The Plaintiff also claimed N75 million against the bank, as general damages for passing off her services, and N2m as special damages. According to the plaintiff, the defendant was with the aim of projecting the bank’s value and goodwill by using the plaintiff’s fame and popularity.
The Plaintiff’s picture was used for advert with Wema Bank’s corporate logo beside her face and the words, “Be yourself, Everyone else is taken”.
In a well considered judgment, Justice Ibrahim Buba, of the Federal High Court, Lagos awarded damages in the sum of N10million against the defendant, for passing off the plaintiff’s services, and an order of Injunction, restraining them from further passing off or enabling others to pass off the plaintiff’s professional services. The court held that the Plaintiff is entitled to her privacy and the privacy of her correspondence, under Section 37 of the 1999 Constitution.
Account for Profit: The brand owner can claim for profit on goods wrongly sold by the infringer. However, being a special damages, it has to be specifically pleaded and proved. This was the position in SOL pharmaceuticals limited v. Susano Pharmaceuticals Limited 5 I.P.L.R. The Plaintiff claim for Trademark infringement succeeds and the court awarded the sum of N 2 million naira as damages. However, the court refused the claim for account for profit because it was not specifically pleaded.
Delivery up for destruction of infringing goods: This is usually the case where physical goods are involved. It occurs where goods are produced in breach of the trademark of another identical product. Thus, the brand owner usuallyclaim for the goods to be delivered up especially so that it can be destroyed.
CASE LAW ON ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHT IN NIGERIA.
PASSING OFF CASES
PORTLAND PAINTS & PRODUCTS NIGERIA PLC V. VODA PAINTS LIMITED SUIT NO FHC/L/CS/1587/15
The Federal High Court sitting in Ikoyi, Lagos state gave a landmark judgment on 13th, June 2019 in favour of Voda Paints Limited in a brand tussle between the company and Portland Paints & Products Nigeria Plc.
Portland Paints instituted this suit against Voda Paints Limited over brand dispute, claiming ownership of ‘Tex’ and ‘Trowel’ a brand name in the paint industry.
The Plaintiff claimed that Portland Paints is the sole manufacturer of trowel paint in Nigeria and sought to stop Voda Paints from manufacturing Trowel Paints. Counsel to the defendant fault the plaintiff’s claim and argued that granting the exclusive right over a generic word to an individual or company would be injurious to the entire Paint Industry.
Justice Mojisola Olatoregun in her ruling declared that ‘Tex’ and ‘Trowel’ are generic words in the Paint Industry and that no one company should be given exclusive use of these words
NIGERIA NATIONAL PETROLEUM CORPORATION (NNPC) V. NATURAL NETWORK PETROLEUM GAS COMPANY LITD (NNPG) & ANOR. SUIT NO FHC/AK/99/15
The Plaintiff (Nigerian National Petroleum Corporation) discovered that the 1st defendant (Natural Network Petroleum and Gas company Limited) was engaged in the business of selling petroleum product in Akura Ondo State under the confusing brand of “NNPG” a name closely related to the plaintiff’s registered trademark.
Following the discovery, the plaintiff filed the instant suit against the defendant for the alleged infringement on its trademark.
TREBOR NIGERIA LTD V ASSOCIATED INDUSTRIES LTD 14 NIPJD [HC. 1972] 127/71.
Trebor Nigeria Limited the makers of Trebor Peppermint brought the instant suit against Associated Industries Limited the makers of Minta Supermint claiming that the wrapper used to by the defendant to package their product was similar to that of the Plaintiff and that they were guilty of Passing off their products like that of the Defendant.
However, the Defendants raised dissimilarities in the two products as a defence to the action.
The trial Judge however in a considered judgment found the Defendants liable for Passing off their products as that of the Plaintiff. In this instance Passing off occurred by the use of a package strongly similar with that of another product such as to deceive the public that they are one and the same. The Court stated the fundamental rule that no man has the right to put off his goods for sale as that of a rival trader.
BRITISH AMERICAN TOBACCO & ANOR V. INTERNATIONAL TOBACCO COMPANY LTD 2 ORS. (2003-2007) 5 I.P.L. R
The Plaintiff, a tobacco manufacturing company are the registered proprietors of the Trade Mark “ Benson & Hedged used on its various brand of cigarette. The Plaintiffs brought this suit against the defendant alleging that the defendants act of manufacturing the “Tradition Brand” of Cigarette purporting same to be product of the Plaintiff amounted to an act of passing off and an infringement of the plaintiff’s trademark.
The defendants adopted the Gold package, design and devices similar to that used on the plaintiff’s Benson & Hedges.
The court held that the Gold Pack specification of the defendant’s “Tradition Cigarette” is infringing the Plaintiff registered Trade mark Gold Specification Pack of Benson & Hedges.
FERODO LIMITED & ANOR V. IBETO INDUSRTIES LTD
The appellant in this case manufactured and sold a brake of linings and brake pads package under the name “Ferodo”. While applying for registration of the trademark, the appellant did not specify that the registration was sought for the accompanying design or garnishing i.e a red rectangle, at the upper end of which was a smaller black rectangle, inside of which “Ferod” was printed in white.
The respondent subsequently introduced into the market its own brand of brake pads and linings which it marketed under the trademark “Union or “Union SUPA”
Ferodo Ltd contended that the trade dress of “Union” was similar to the trade dress of its Ferodo” and sued for passing off and infringement of its trademark.
However, the court held that that when a proprietor decides to garnish a trademark with other fanciful and ornamental character which makes it appealing and decorative, it cannot be assumed that the fanciful and ornamental character which clour the package form part of the trademark. In the absence of registration of the garnishing, the alleged use of the trade dress by Ferodo was held by the court not to give the appellant monopoly over the use of the colour.
Compare with Addidas case of other jurisdiction.
The General Court of the European Union backed the decision of the European Union intellectual property authorities that Adidas could not trademark three stripes.
The court said Adidas had failed to show that its trademark of parallel stripes was distinct enough in the minds of European consumers.
It said the company only provided evidence of its “acquired distinctive character” in five out of the EU’s 28 member states. As such, the trademark “cannot, in the present case, be extrapolated to the entire territory of the EU.”
The court said the mark is not a mark composed of a series of regularly repetitive elements, but an ordinary figurative mark.
GHILL ENTERTAINMENT LIMITED V. UNION BANK PLC. SUIT NO: FHC/L/CS/659/15.
The Plaintiff (Ghill Entertainment Ltd) an event, content provider and entertainment company filed a suit against the defendant ( Union Bank Plc) for alleged copyright infringement.
Sometimes in 2014, the plaintiff developed a youth activation product idea and marketed the idea to the defendant bank. The plaintiff further alleged that it had several meeting and discussion with the representatives of the defendant and the defendant showed interest in the idea and prompted the plaintiff to develop detailed materials to help launch the defendant’s product on campuses.
However, the plaintiff later discovered that the defendant had gone ahead to execute an edition of the project similar to that pitched by the plaintiff to the defendant’s representative.
This actions of the defendant has promulgated the instant suit at the Federal High Court, Ikoyi.
Victor Uwaifo V. Simi
Victor Uwaifo a Nigerian artist of the 1970’s has sued Simi for N50 million damages over the usage of the word ‘Joromi’ in her song and as the title of one of her tracks.
‘Joromi’ was the same song title Uwaifo gave to his 1979 global hit.
The case between both artistes is generating debates on what constitutes copyright infringement.
Mr. Paul Dairo V. Emerging Market Telecommunications Services & Anor. Suit No FHC/L/CS/581/2014.
The music artist Paul Play Dairo (the plaintiff) has filed a suit against Emerging Market Telecommunications Services & Anor. (the defendant) for copyright infringement.
The defendant popularly (known as Eitsalat) used the plaintiff’s song “Mosorire) in its popular TV reality show ‘Nigerian Idol” for two consecutive times without paying a dime to the plaintiff.
The Plaintiff had alleged that the defendant infringed his copyright when they allowed a contestant on the show to reproduce and perform his song on television, stating that as a singer and composer, he was entitled to an annual fee of N100m on the said track, commensurate with his effort in putting the work together. The Plaintiff averred further that having made use of his work without obtaining permission from him the defendant had caused him loss of income while they made gains and improved on their own brand image.
Danny Young V. Tiwa Savage FHC/L/CS/230/2019
In the above suit, pending before Justice Mohammed Liman, Danny Young is claiming N205 million in damages against Tiwatope Savage for allegedly, using his musical work titled ‘ONE’ without lawful authority.
However, at the resumed hearing of the suit on 5th November, 2019, counsel to Danny Young informed the court that the defendants Tiwa Savage and the Marvin record have reached out to his client and that parties are exploring an out of court settlement of the suit. Thus, the suit has been adjourned to 3rd December, 2019 for report of settlement.
Article by: Hannah Adeyemi (LLB, BL) Head of Chambers, Adeleye & Adeleye Solicitors.