Nigerian entrepreneurs need to become aware of provisions within the law that can protect their businesses and their creations.
By Moe Odele & Uduak Ekpe
In the Nigerian entrepreneurship scene, conversations surrounding intellectual property rights are becoming increasingly common.
Yet, it appears Nigerian entrepreneurs are not completely convinced as to what it has to with them. Perhaps because IP is not immediately relatable.
Or maybe it is the general Nigerian apathy towards rights and the fact that nobody really enforces these rights, even those who are aware of them.
Irrespective, as an entrepreneur, you should be aware of your intellectual property rights and protection under these rights because of how it directly affects your business. They could well be the deciding factor between whether your business sinks or floats.
To begin with, intellectual property, according to the World Intellectual Property Organisation (WIPO) refers to creations of the mind: inventions; literary and artistic works; and symbols, names and images used in commerce.
Intellectual property rights would thus be rights that allow creators or owners, of literary, artistic and industrial or technological inventions to benefit from their own work or investment in a creation through protections such as patents, trademarks, designs and copyright.
The law is a good place to begin when addressing a person’s rights and privileges. In Nigeria, intellectual property is governed by a number of different legislations, and these cater to the different kinds of protections available.
The Trademarks Act 1965, Design and Patent Act 1970 and Nigerian Copyright Act (Amended) 1999 govern trademarks, patents and industrial design, and copyright respectively. The Trade Marks, Patents and Designs Registry in Abuja is where all IP protection applications are made.
As a Nigerian entrepreneur who is not an inventor per se, the most relevant protections to understand are Trademark and Copyright protections.
A trademark is a distinctive sign that identifies or distinguishes certain goods or services produced or provided by an individual or a company. A trademark is what signifies the identity of your brand or company. There are no completely new ideas and chances are, whatever you think of has already been thought of by someone else. And with the increasing number of startups springing up in the country, it is more important than ever to trademark your business name, logo, slogan etc. in order to distinguish it.
What this means is that your brand assets can be protected. So how do you go about it?
The first step is to do a search at the Trademark Registry to ensure that the name is available. If the name is available and therefore registrable, you then apply for registration.
There are a multiple of classes you can register under (and depending on the name and your type of business, a lawyer will advise on what class is most appropriate for you).
The application will then be sent to different bodies within the Trademarks Registry and then it will be published in the next volume of the Trademarks journal. A
fter this publication stage, members of the public have two months to object to the registration of the mark. If there’s no objection, you can then go ahead and apply for certification. After this, you will be granted a Certificate for the Registration of the Trademark.
These different stages involve different fees so also make sure to check with the lawyer helping you with the registration for a breakdown of the total fees you will have to pay. All the fees for different classes are also publicly obtainable.
Registering your trademarks as early as possible protects you from future litigation or squabbles as you keep growing.
It also ensures that no similar business passes off as your business by using a name or other brand assets that is enough to confuse the general public and make them think the business is associated with you.
The process of registering a trademark is not too complicated and can be done by yourself or with the help of a lawyer. At Vazi Legal we are also available to assist persons who would like to protect their brand assets
A patent, on the other hand, is an exclusive right granted for an invention – a product or process that provides a new way of doing something or offers a new technical solution to a problem.
Ideas and “dreams” lack the status of qualifying for a patent license under the Nigerian Law, thus, only a thing which is new or novel, results from inventive activity and is capable of industrial application can be patented.
One could also get an industrial design patent which covers the ornamental or aesthetic aspects of an article such as car designs etc.
A design may consist of three-dimensional features, such as the shape or surface of an article, or two-dimensional features, such as patterns, lines or color. Furthermore, an industrial design must be new or original and non-functional.
Finally, copyright grants authors, artists and other creators protection for their literary and artistic creations, generally referred to as “works”.
This covers entrepreneurs in fields such as painting, music, poem, architecture, computer software, graphic design, maps and technical drawings and gives exclusive rights to the creator in the exploitation of his works.
Copyright is generally more straight forward as you do not have to register a copy right per se for it to be protected. It is automatic in a work when the work is created and expressed in a “tangible medium”
For the work to be eligible for Copyright it must follow the provisions of the Copy Right Act and Section 1 is reproduced below.
“1. (1) subject to this section, the following shall be eligible for copyright-
(a) literary works;
(b) musical works;
(c) artistic works;
(d) cinematograph works;
(e) sound recording; and
(2) A literary, musical, or artistic work shall not be eligible for copyright unless-
(a) sufficient effort has been expended on making the work to give it an original character;
(b) the work has been fixed in any definite medium of expression now known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device
(3) An artistic work shall not be eligible for copyright, if at the time when the work is made, it is intended by the author to be used as a model or pattern to be multiplied by any industrial process.
(4) A work shall not be ineligible for copyright by reason only that the making of the work or the doing of any act in relation to the work involved an infringement of copyright in some other work.
In Nigeria, the laws governing these areas are not nearly as progressive as other countries, which means that with the increasing need and use for technology in the different sectors, there is hardly enough legislation to protect an individual’s rights to creativity and innovation.
Still, as a Nigerian entrepreneur, you would be doing yourself and your business a great disservice by ignoring the currently available and relevant protections that a Trademark and Copyright registration affords you.
PLEASE NOTE THAT THIS IS AN ARTICLE FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE AND THEREBY DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN VAZI LEGAL AND ANY READER OF THIS ARTICLE.
Editorial Note: This article was originally published in The Spark Magazine. Find the magazine here to read other articles.
Modupe Odele is an International Attorney and Business Consultant who is focused on Startup advisory and Impact Investing. She is the Impact Investing and Social Enterprise Lead of a boutique Consulting firm with offices in London, the UAE and the United States. She also runs a social enterprise called “Scale My Hustle” which is focused on providing resources to enable entrepreneur’s better structure their business. Moe has a Master’s degree from Columbia University where she graduated as a Harlan Fiske Stone Scholar, a David Leebron Human Rights Fellow, a Salzburg Lloyd N. Cutler International Law Fellow and a recipient of a fellowship from the Columbia Center on Sustainable Investment.