What You Need To Know About Protecting Your Intellectual Property
What is Intellectual Property?
Let’s start from the beginning. What is classified as Intellectual property?
Intellectual property refers to creations of the mind.
This includes inventions, literary works, musical works, artistic works, sound recordings, symbols, names used in commerce, etc.
There are some peculiar situations where this applies. For instance, the colour palette/scheme used on a piece of design can be protected to prevent such colour and design from being passed off as the work of another.
Why is it important?
Bottom line, Intellectual property prevents others from unfairly copying another’s work without authorization.
Despite that Intellectual property is still a growing subject in the Nigerian Legal Space, Nigeria has three major frameworks for the protection of intellectual property. They are –
- The Patent and Design Act,
- The Trademark Act and
- The Copyright Act.
PATENT AND DESIGN ACT
This is the exclusive right granted to the owner of a process, or design to prevent it from being copied.
It gives the right holder the monopoly over his work, except with his consent, throughout the subsistence of the patent.
For a work to be patented, it has to meet the following requirement-
1. Novelty and Originality
A work or design or process is considered to be novel when it is a new invention, applicable to industrial use. What this entails is that the person seeking to patent his design or a process must show that his creation can be applicable for use.
An innovation may not necessarily be new, however, it is a process of making a significant change to a new invention, which adds value and contributes to the general usability of a product.
An application for a patent typically takes twelve months and is filed with the Registrar of Patents.
Due diligence must be done before an application is granted to prevent duplicity. However, in Nigeria, searches are often conducted manually so there is no foolproof method of ensuring that multiple patents are not in existence.
Once everything about a patent is positive, the patent will be granted and it typically lasts for twenty years.
In the case of multiple filings, Priority is given to the first person to file a patent application.
However, this might be a problem when a person knowingly files for a patent with a stolen design.
Copyright is the exclusive right over a piece of work and it exists as soon as the work is created.
The Copyright Act gives a list of works eligible to be copyrighted. They are:
- musical works e.g. lyrics;
- artistic works e.g. drawings, illustrations, photographs, etc;
- cinematograph films e.g wedding videos, motion pictures, video games;
- literary works e.g books, scripts, textbooks, etc ;
- sound recording e.g beats, audio files, podcasts etc, and
- broadcast e.g podcasts, radio.
How To File
Works eligible for copyright are usually registered at the Nigerian Copyright Commission.
- For music, an affidavit must be filed at the Federal High Court
- For films, simply inserting the copyright symbol is enough.
The duration of the copyright depends on the work being created.
- For literary, musical and artistic works, the copyright lasts for 70 years after the death of the author.
- For government or a corporate body, 70 years after the work was first published.
- Films and photographs last for 50 years after the work was first published. Same as sound recording and broadcasts.
The Federal High Court is the only court with jurisdiction to entertain cases of intellectual property in Nigeria.
This means that the owner of a copyrighted work has the right to seek redress if there has been any infringement or mutilation to his work.
In Nigeria, the problem of piracy is astounding. Music and movie owners have had their work duplicated for years without benefiting from it.
However, with the advent of technology, streaming platforms are now available for artists to upload their work and get paid from it instead of losing out to piracy.
Trademark is another intriguing intellectual property concept that largely relates to business.
Trademarks are usually useful in identifying a brand and its’ services from that of another.
A trademark is a name, word, mark, logo, used to distinguish a particular product or brand from another who is likely to be a competitor.
An example of a very popular trademark across Nigeria would be the NTA news jingle.
Registering of a trademark gives the owner exclusive right for the purpose for which it was registered.
This right is said to be infringed on when another person uses something similar or a mark/logo that can be closely associated with the intention of misrepresenting or deceiving others into thinking that they serve the same purpose.
The mark to be considered eligible for registration must contain one or more of the following-
- 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 surname;
- any other distinctive mark;
Failure to comply with any of these requirements constitute grounds for refusal of the trademark application. Other grounds for refusal are:
- that the mark is deceptive or scandalous, contrary to law or morality.
- An absolute grounds objection can be overcome by making representations, either oral or written to the Registrar, or by amending the proposed trademark application, where applicable.
- that the mark contains a word which is commonly used and accepted name of any single chemical element or single chemical compound, as distinguished from a mixture in respect of a chemical substance or preparation.
- that the mark contains some prohibited words and/symbols such as the names of chemical substances, Coat of Arms, the words “patent”, “patented”, “registered”, “registered design”, “copyright”, or words to the like effect, and so on.
The Difference Between Copyright & Trademark
Unlike copyright which is vested automatically in the owner upon creation, the trademark has to be registered in order to have exclusive right over it.
A trademark application is initially valid for 7 years and can be further renewed for another 14years.
An application to be made should not be made less than 3 months before the due date.
Why Is It Important?
Registering a trademark is important for a business because it acts as an identifier especially in relation to the growth of a successful business.
The more a brand increases in assets and value, the more recognition it gets due to the name it is associated with. Similarly, a brand name can become a generic name when people begin associating all products similar to the brand as the original one making the former lose its distinguishing factor.
Nigeria has a long way to go in providing and enforcing intellectual property laws due to an array of legal issues which the laws have not provided for.
However, the intellectual property discourse is one that has come to stay especially as it cuts into almost every facet of life.
If you have any questions about intellectual property or eligibility to the trademark, copyright or trademark, reach out to a legal professional and they can help you out and guide you to make the right decision and more importantly, protect you and your ideas, works and business.