By Iberedem Obot
What is intellectual property?
Intellectual property commonly referred to as IP refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. It is a category of product that in includes intangible creations of the human intellect. The Black’s Law Dictionary defines Intellectual Property as a category of intangible rights protecting commercially valuable products of the human intellect. The category comprises primarily trademark, copyright, and patent rights, but also includes trade – secret rights, publicity rights, moral rights, and rights against unfair competition”
Types of Intellectual Property?
Trademark
A trademark is a distinctive name, sign or logo which uniquely identifies the source of goods and services. It’s primary purpose is to ensure that no-one uses the trademark of another which is similar or identical, so as to prevent confusion in the course of trade in relation to the goods and / or services in which it is registered. It is a special mark which distinguishes the goods and services of one entity from another. An example of a trademark is the “just do it for nike logo, the pepsi sign logo, the apple sign logo for apple products. The list goes on.
Patent
A patent is a form of intellectual property that gives its owner the legal right to exclude others from making, using, selling and importing an invention for a limited period of years, in exchange for publishing an enabling public disclosure of the invention. It is the right granted to anyone who invents any new and useful process or fundamentally impresses an existing process. A typical example of a patent
Industrial Design
Industrial design is the ornamental or aesthetic aspect of a useful article which may consist of the shape, pattern and / or colour of the article and must appeal to the eye. It could simply be said to be a combination of lines or colour or both and any three dimensional form.
Copyright
Copyright is that aspect of the law that deals with the rights of intellectual creators in preventing unauthorized copying or reproduction of the literary or artistic works. The principal purpose of Copyright is to protect against the appropriation of the produce of another person’s literary and artistic work or effort. Copyright consists of exclusive rights given to the creator in the exploitation of his works; this includes painting, music, poem, architecture, computer software, maps and technical drawings.
How Can I Protect My Intellectual Property
As a local or foreign investor/entrepreneur, you can protect your Intellectual property rights in Nigeria.
The trademark registration in Nigeria provided for by Trade Mark Act LFN 1990 is one important way to protect and distinguish someone’s trade symbols in Nigeria. All individuals or entrepreneurs or companies should strive at all times to protect their business’ identities by registering unique symbols or trademarks of the business. Registering a trademark in Nigeria is the only way to protect a unique brand in the market place.
Some of the trademarks that can be registered include name, slogan, domain name, shape, colour and logo. The trademark is usually registered through the Trademarks, Patents and Designs Registry, Commercial Law Department of the Federal Ministry of Industry, Trade and Investment in Nigeria.
Trademark registration in Nigeria gives the owner the right to use such registration to exclude others from violating or willfully copying or usage by a third party without consent. A registered owner of a trademark may institute an action in court to block any infringements or unauthorized use of their trademarks.
How To Register/Protect A Trademark, Patent and Industrial design in Nigeria
Essentially, there are three major stages involved in intellectual property registration, which I will briefly explain as follows:
Search & Application
The first step required to be taken for any person or organization desiring to register a trademark is to brief an Agent, usually a Lawyer and inform him of the trademark or the description of a symbol or logo or design to be registered. A search is conducted on the trademark at the Trademarks, Patents and Designs Registry, Commercial Law Department of the Federal Ministry of Industry, Trade and Investment, Abuja and if it is not in conflict or too similar with any existing trademark, an application for the registration can proceed. The Registrar will issue an acknowledgement upon the recipient of any due application and different payments are made for search and application processing.
Acceptance
Where an application has been approved after a successful search has been conducted, the Registry will accept, register the trademark and issue an Acceptance Letter to the applicant. The Acceptance Letter is initial evidence that the trademark has been duly registered.
Publication And Certification
The third stage involves publication in the trademark journal and certification. Upon the acceptance of the registration of a trademark, the Registrar will ensure the notice of the application is published in the Trademark Journal. Such notification will include the full details of the application and the applicant. By virtue of this publication, any interested person would have the opportunity to oppose or object to the registration. Any person or organization who considers that a trademark being sought may likely confuse or mislead the public in light of any pre-existing trademarks may protest to the Registrar to stop such registration by filing a notice of opposition in a prescribed form. Protests or oppositions containing the grounds upon which the protest is made must be sent to the Registrar of Trademarks within two months of publication of notice in a journal. The Registrar will notify the applicant of any protest or opposition received. The applicant may respond to such opposition within one month from the date of receipt of such notice from the Registrar. An applicant who failed to respond to the opposition received with his or her own counter-statement may be deemed to have abandoned his or her application.
Where Registrar received the response of the applicant stating why the applicant is entitled to such trademark, the Registrar of Trademark shall constitute a Tribunal to determine the conflict in favour of one of the contending parties. Where there is no opposition to the publication in the journal, or opposition has been made and successfully resolved in favour of the applicant, the Certificate of Registration will be issued for the trademark sought. The Certificate indicates the evidence of due registration and completion of all processes. It confers a right on the proprietor or the owner to use the trademark to the exclusion of every other entity. However, where any other person or entity successfully challenged the applicant in opposing a trademark registration, the Registrar will issue a letter of refusal to the applicant.
Basic Requirements For Intellectual Property Protection In Nigeria
The basic requirements every intending trademark applicant should prepare or provide include the followings
Logo, which may include Words and/or Device
Name of the applicant
Contact details of the applicant
Power of Attorney appointing an agent to conduct such registration (an accredited agent/lawyer may help to prepare the power of attorney)
Non-Traditional IP
The commercial aspects of intellectual property are usually referred to as the non-traditional aspects of IP, the list is not exhaustive but includes:
Licensing
Franchising
IP Securitization
Assignment
Furthermore, IP has become a fundamental consideration in the following transactions:
Merger and Acquisition
Joint ventures
Due Diligence
The relevance of Intellectual Property Protection
In today’s competitive environment, innovation is the mainstay for every business that leads to development of intellectual property. Identifying, developing, and leveraging innovation provides competitive edge and aids in long term success of a company. Intellectual property is not limited to technology companies, but is valuable for every business which invests huge sums in research and development for creating indigenous products and services.
A company should be proactive in implementing IP solutions to identify novel innovations and increase revenues. A well-defined IP goal can result in achieving business objectives and help position the business as a leader in the marketplace. With growth in business revenues, the IP strategy can include protecting the unique aspects of the assets and foster innovations to explore new geographies. This can be achieved through licensing or joint ventures to create novel solutions that satisfy the unmet needs in the market.
A company must evaluate its existing intellectual property to determine whether it is in line with business objectives. This helps the company to identify new ways to leverage the intellectual property through licensing opportunities. Successful companies must look for new avenues to expand their product offerings, increase their sales revenue, and foray into new markets.
An organization’s patent portfolio is vital for its future success along its various intellectual property assets as designs, trademarks, and copyrights. Thus, organization should ensure the maximum realization of its existing portfolio which can be done through effective portfolio management. Also, the organization should understand the patent portfolio in tandem with its competencies and market opportunities available. There is a need to identify white spaces where the organization can license its patent portfolio or divest to gain financial returns.
Multiple Types Of IP Rights Can Be Used To Protect An Invention
Most people do not know or have not really realized that they are able to protect their invention using multiple types of IP rights. However, most products can be protected by all four types of intellectual property rights. Take, for example, a can of Coca-Cola®. The brand, “Coca-Cola,” is a trademark. The formula for the actual soda is a trade secret, while copyright protects the packaging art. The shape of the Coca-Cola® bottle is protected by both (1) a design patent and (2) a trademark (i.e. trade dress). Likewise, your product can most likely be protected by one or more of the different types of intellectual property rights. It is important to parse out which aspects of the invention or idea are suitable for patent protection, trademark protection, or copyright protection, and which aspects of the invention or idea should be protected by trade secrets. Be open-minded when you think through the types of intellectual property that might be applicable to protect your invention
Benefits of protecting your intellectual property
It can turn your ideas into monetary value
It will enhance your business’ market value
You will stand out from the competition
It can enhance your opportunities relating to exports in business
You can easily obtain financing for your business.
Laws governing intellectual property in Nigeria
Trademark – Trademarks Act 1965
Patent – Design and Patent Act 1970
Industrial Design – Design and Patent Act 1970
Copyright – Nigerian Copyright Act (Amended) 1999
Merchandise Marks Act 1956
Federal High Court (Civil Procedure) Rules 2009
Intellectual property Regulatory/Enforcement bodies
Nigeria Copyrights Commission
National Agency for Food and Drug Administration Control
Nigerian Customs Service
Nigerian Police
Nigerian Intellectual Protection Office
In
conclusion, it would be important to mention that the benefits accrued to the registration of a trademark and patent in Nigeria includes brand and identity protection from any infringement. Additionally, an owner of a trademark can sell or lease out his or her trademark to another person or organization if the owner chooses in future. It is also possible for the owner of a trademark to allow certain persons or organizations to use his or her registered trademark with him or her in the future. Companies and individuals that require the services of trademark registration in Nigeria and patent registration are advised to speak to a trademark lawyer or consultant in Nigeria.
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