Registering your intellectual property in Nigeria

Introduction

The World Intellectual Property Organization (WIPO) defines Intellectual property as the legal rights which result from intellectual activity in the industrial, scientific, literary and artistic fields. It is a right given by law to protect the creations made from the human intellect and it prevents third parties from profiting, copying or using these creations without acquiring the owner’s consent.

Benefits of registering intellectual property

  1. It excludes others from using, selling or profiting from the use of the invention or creations without the authorization or permission of the owner or creator.
  2. It guarantees monopoly of the creations or inventions over a prescribed period of time allowable by law.
  3. It grants the owner or creator a competitive advantage over similar enterprises.
  4. An owner or creator has the right to institute an action against another for infringement and claim damages or injunction[1] at the Federal High Court.[2]
  5. The value of the business or enterprise could increase once registered.

Types of Intellectual property

  1. Copyright
  2. Trademark
  3. Patent
  4. Industrial design
  1. COPYRIGHT

Copyright is the exclusionary right that the owner of an intellectual creation has to make copies of his work, the right in use, production and exploitation (Cornish, 1999)[3]. It is an intellectual property that grants originators the exclusive right to publish, reproduce and distribute their works. The following works are eligible for copyright in Nigeria[4];

  1. Literary works
  2. Musical works
  3. Artistic works
  4. Cinematography works
  5. Sound recording and
  6. Broadcasts

The administration of Copyright in Nigeria is vested in the Nigerian Copyright Commission (NCC)[5] and the Commission is responsible for registering Copyrights in Nigeria. Copyright registration is not a condition precedent for protecting an eligible work, however, it is a voluntary process made by the creators to notify the NCC of the existence of their works. Registration provides a reliable source for verifying data of the author’s work to the public and it further preserves original copies of the works.

A copyright work will be eligible for registration where it is an original work and it is fixed in a definite medium.[6] A completed registration form will be accompanied with 2 copies of the work and evidence of payment of the prescribed registration fee.

Under the Copyright Act, works eligible for copyright do not enjoy permanent protection and once it expires, the work goes to public domain for free use by third parties.

For literary, musical and artistic works, the duration is throughout the lifetime of the author and 70 years after the author dies and in the case of government or body corporate, 70 years after the end of the year which the work was first published. For cinematograph films and photographs, sound recordings and broadcasts, the duration is 50 years after the end of the year in which the work or recording or broadcasting was first published or made or took place.[7]

  1. TRADEMARK

WIPO defines trademark as a sign distinguishing the goods and services of one enterprise from another[8]. Trademark consist of a mark which includes a device, brand heading, label, ticket, name, signature, word, letter, numeral or any combination thereof[9].

The mark to be registered must be distinct and distinguished from other goods as particularly described under the Trade Marks Act[10]. The following documents will be required for registration upon application to the Registrar of Trade Marks;

  • Specification of the class within which the goods belongs.
  • Information on the proposed trademark.
  • Power of attorney/ Authorization of Agent

The Trademark Act[11] provides that a trademark registration subsists for a period of 7 years and it may be renewable for a further period of 14 years.[12] The agency in charge of trademark registration is the Trademark, Patents and Designs Registry, Commercial Law Department of the Federal Ministry of Industry, Trade and Investment. Once registered, a trademark can be assigned.

  1. PATENT

A patent grants an inventor the exclusive right to prevent others from importing, selling or using the product invented[13] Patentable rights applies only to acts done for commercial purposes[14] The National Office for Technology Acquisition and Promotion (NOTAP) is saddled with the responsibility to assist in the patenting of inventions and innovations carried out by Government funded institutions and private sector.[15]

Requirements for registration[16]

  1. An application made to the Registrar of Patent and Industry Design
  2. A power of attorney authorizing an agent
  3. A declaration by inventor (where applicable)
  4. Payment of prescribed fees.

Under the Patents and Designs Act, a patent expires 20 years after the date of filing the patent application. It further provides that the patent would lapse where the prescribed annual patent fees are not paid subject to a 6 months grace period.[17]

  1. INDUSTRIAL DESIGN

Industrial design in intellectual property particularly refers to the attractiveness or appearance or shape of a product and by registering an industrial design, it prevents the design from being copied, imported, or used for commercial purposes without the consent of the owner. Under the Patents and Designs Act, an industrial design is any combination of lines or colors or both and any three-dimensional form intended to be used as a model or pattern to be multiplied by industrial process and is not solely to obtain a technical result[18]

Requirements for Registration

An industrial design is eligible for registration where it is a new design and it is not against public order or morality[19]. An applicant shall file an application to the Registrar of Patent and Industry Design alongside the following;

  1. A specimen of the design or photographic representation or any other means of reproduction.
  2. An indication of the kind of product for which the design will be used.
  3. A signed power of attorney authorizing an agent to make the application on behalf of the creator.
  4. Payment of the prescribed fee.

Industrial design, like all other intellectual property, has a period of expiration and it expires after five years from the date of application. Upon payment of the prescribed fees, an industrial design can be renewed for two further consecutive periods of five years.[20]

Conclusion

Intellectual property is the product of the human intellect and the law bestows several rights as a reward for these creations. Therefore, it weighs on the creator to ensure the lawful registration in order to enjoy the benefits provided by the several Nigerian laws governing intellectual property.

 

 

REFERENCES

[1] Sections 15 and 16 Copyright Act 1998 (as amended), Section 25 Patents and Designs Act 1970

[2] Section 7 Federal High Court Act 2005

[3] Cornish, W. R. 1999. Intellectual property: patent, copyright, trademark, and allied rights 4th ed. London: Sweet & Maxwell

[4] Section 1 Copyright Act 1998(as amended)

[5] Section 34 of Copyright Act 1988 (as amended)

[6] Section1 (2) Copyright Act 1988

[7] First Schedule of the Copyright Act 1988(as amended)

[8] World Intellectual Property “Trademark” https://www.wipo.int/trademarks/en/ accessed on 28th March 2022

[9] Section 67 Trademarks Act Cap T3 LFN 2004

[10] Section 9 (1) Trade Marks Act Cap T3 LFN 2004

[11] 1965 Cap T13 LFN 2004

[12] Section 23 Trade Marks Act (Supra)

[13] Section 6(1) Patents and Designs Act 1970

[14] Section 6(3) Patents and Designs Act 1970

[15] Patenting Inventions through NOTAP < https://notap.gov.ng/new_dev/patenting-inventions-through-notap/> accessed 28th March 2022

[16] Section 3 Patents and Designs Act 1970

[17] Section 7 Patents and Designs Act 1970

[18] Section 12 Patents and Designs Act 1970

[19] Section 13 Patents and Designs Act 1970

[20] Section 20 Patents and Designs Act 1970

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