Nigeria’s Trademark Act was adopted more than 50 years ago. Yet some persons still regard intellectual property (IP) law as an “emerging area of law.” After considering the state of intellectual property rights (IPRs) in Nigeria, you may be more understanding of this group of people. Intellectual property rights are rights awarded to individuals for the creation of their minds for a limited period of time. Intellectual property rights are known to many Nigerians but are laced with the popular and recurring problems of recognition, enforcement, and legislation. There are somewhat unpopular issues as well. You are about to find out the details of the issues or loopholes preeminent with intellectual property rights in Nigeria.
In Nigeria, legislation for intellectual property rights includes the Trademark Act of 1965, the Patent and Designs Act of 1972, and the Copyright Act of 1992.
The years speak for themselves. Notwithstanding the amendments or revisions made to some of these laws, they cannot handle recent issues that were not envisaged due to technological advancements and globalization.
Still, newer laws have not been enacted to meet the needs of the ever-evolving world. Nigerian lawmakers or commissions or their heads tasked with making IP-related regulations seem not to be as active as their counterparts.
The IP laws do not sufficiently cover issues bordering on software, the internet, privacy, and competition.[i] With the current Copyright Act, where, for instance, a book is photocopied and sold by another without the consent of the owner, the law is clear on how to tackle the situation. But due to the emergence of the internet, copyrighted works are now proliferating like never before. Yet, the copyright law seems to be silent on how to enforce the rights of a copyright owner in this scenario. The United States has the Digital Millennium Copyright Act, while India has Rule 75 of the Copyright Rules of 2013.
Over the years, there has been a shift in what constitutes a trademark. However, Nigeria is still stuck with traditional marks. Other countries have incorporated unconventional trademarks into their laws, like scents, motion pictures, and sounds. For instance, in India, sounds can be registered under the trademarks Act.[ii] In Malaysia, the new Trademarks Act includes sounds, scents, shapes, colors, etc., as trademarkable.[iii]
Penal awards like fines and terms of imprisonment are out of tune with current realities.[iv] The criminal penalty for some cases of copyright infringement ranges from a fine of 100 (0.24 cents) to 1,000 naira ($2.41) or up to 5 years in prison.[v] There is no criminal liability for trademark infringement, but the fine for false representation of a mark is 200 naira.[vi] However, the Cybercrimes (Prohibition, Prevention, E.T.C.) Act 2015 limits the fine to $5 million or two years in prison.[vii]
Treaties like the PCT and TRIPS have not been domesticated by the legislature. In a report, Nigeria scored 28.57 in membership and ratification of international treaties.[viii]
As a result of the above, there is a need to make laws or regulations to solve these new issues.
Low recognition of Intellectual Property Rights in Nigeria
So far, the Nigerian government seems to be putting little effort into the advancement of IPRs.
For IPRs to be valued and regarded as sacred by the general public – business owners, creators, and innovators, they must recognize their benefits. This can be achieved if the government assumes a leading role.
Notwithstanding the efforts of NGOs or independent persons, if the government wants to ensure the compliance of a directive or law, sensitization of the public—from children to adults—comes first. The recognition of IPRs by various countries around the world has prompted them to invest in the education of the public. Like Japan and Korea, many countries have partnered with WIPO to create IP-related programs and cartoons like “Picture Frenzy for Pororo.”[ix] The Canadian Intellectual Property Office hosts informational webinars on a yearly basis.[x]
The number of inventions and innovations, as well as IPR applications, in these countries, reflects the general level of awareness and understanding of IPR. In Canada, between 2020 and 2021, there were 76,168 trademark applications, of which over 30,636 were from Canadian citizens.[xi]
The same cannot be said for Nigeria. While we can blame various factors for this unfortunate reality, we must, first of all, make efforts to blame the government and possibly its agencies for the ridiculous, almost non-existent level of sensitization of IPRs spearheaded by them. In 2019, there were 14,690 trademark applications, and in 2020, 423 patent applications, including residents and nonresidents.[xii]
If the government or agencies creates adequate awareness for the importance of the protection and respect for IPRs by creators and innovators and the public, respectively, the reality may be different.
Indeed, the protection of IP requires monetary investments for long-term benefit. The fees involved make them reluctant to make such investments. Of course, they can make that choice because the protection of their rights is not a regulatory mandate but a necessity. The number of applications over the years reflects how often this choice is made. Their ignorance of the benefits of IP protection, like the attraction of investors, cannot spur them to be creative and innovative or even invest in their protection.
Furthermore, he combined the effect of the minute efforts by creators/innovators to protect their IP and the aloofness of the government to sensitize the public to make the public not to see IP as a sacred right to property. They brazenly plagiarize, pirate, and reproduce.
Sensitization may not completely eliminate infringement cases because people will always act even when they know it is wrong to do so. Act. However, it can go a long way toward reducing infringement and giving creators and innovators the confidence to advocate for the protection and the enforcement of their rights when they are violated.
Low enforcement of Intellectual Property Rights
The low enforcement of IPRs in Nigeria is well known locally and globally.[xiii] On one hand, this is a result of the little efforts made by creators or innovators to ensure the protection of their rights. Unfortunately, the law is not Santa Claus—it will only give you what you ask for after carefully considering the merits of your case. A study of intellectual property cases shows that there are not many decide IP-related cases.
Furthermore, due to the ineptitude of some agencies, the tracking of and seizing of counterfeit or pirated products, especially in the movie industry, is almost nonexistent. According to a global report, Nigeria’s enforcement of IPRs in 2020 was just 17.21%.[xiv] Furthermore, software piracy was estimated at 80% by BSA.[xv]
For matters that make it to court, due to the technical nature of IP, especially in relation to patents, judicial officers are not knowledgeable in that area.[xvi]
Low recognition of Intellectual Property as an intangible asset
Oftentimes, intangible assets are not recognised as a measure for successful businesses. The focus is usually on tangible assets. As a result, the concept of IP auditing and valuation is novel and almost nonexistent. Individuals and even corporations are yet to embrace it.[xvii]
Furthermore, since it is still novel, it seems far fetched or difficult to grasp among those who are ordinarily involved in the exercise, such as auditors, lawyers, or valuers.
Thus, businesses miss out on the various advantages of carrying out an IP auditing or valuation, such as identification of IP-related threats,[xviii] preservation and enhancement of the value of their IP,[xix] and the opportunity for the use of their assets as financing collateral.
Low leverage on technology
Most countries have adopted the use of technology in facilitating IPR protection and registration. As much as there have been improvements over the years, Nigeria is far behind the moving bus.
Certain processes that could be conducted electronically are still done manually or physically, such as searches or proceedings.
As much as trademark searches can be conducted online, the irony is that they are not often regarded as reliable. Manual and physical search is often resorted to “for a greater accuracy“[xx] and is even referred to as “the actual search.”[xxi]
However, in the US, through the Trademark Search System (TESS) portal, trademark searches can be efficiently conducted before registration. This is also the case in South Africa.
A hearing for the refusal of a trademark application is also conducted physically. The cost of transportation and the time wasted on the roads could be averted by using online processes. Furthermore, it has been reported that the “registrar is often very slow and reluctant to give a hearing date due to the cumbersome workload it is faced with.”[xxii] Owners will find the entire process frustrating as a result of this.
The same can be said for trademark opposition proceedings. In the USA, these are conducted by the Trademark Trial and Appeal Board (TTAB), using the electronic system for trademark trials and appeals (ESTTA).
Conclusion: The various challenges, as highlighted above, hamper the exercise and enjoyment of IPRs. This reflects the need for a total overhaul or, at best, a revision of the existing IP systems. This is to ensure that the advantage of exclusive right to use is retained by creators or inventors to encourage creativity and innovation. Furthermore, since economic and technological advancements can be an incident of a robust IP system, which is beneficial to the public at large, maximum efforts must be exerted. While the various comparisons above are not to place various countries side by side with Nigeria, it is to reflect how far behind the world has left countries like Nigeria.
[i] Kehinde Fatoba, Intellectual Property Rights – An Overview of Nigerian Legal Framework, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3501898) accessed 22nd March 2022.
[ii] Rule 26 (5) Trade Mark Rules, 2017
[iii] US Chamber, IP Index, https://www.theglobalipcenter.com/report/ipindex2021/ accessed 22nd March.
[iv] Kehinde Fatoba, Intellectual Property Rights – An Overview of Nigerian Legal Framework, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3501898) accessed 21st March 2022.
[v] Section 18 Copyright Act.
[vi] Section 61 Trademark Act.
[vii] Section 25 Trademark Act.
[viii] US Chamber, IP index, https://www.theglobalipcenter.com/report/ipindex2021/ accessed 21st March 2022.
[ix] WIPO, Building respect for IP, https://www.wipo.int/enforcement/en/awareness-raising/ accessed 21st 2022.
[x] Government of Canada, Seminar Series, https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr04235.html accessed 21st March 2022.
[xi] Government of Canada, Seminar Series, https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr04977.html accessed 21st March 2022.
[xii] WIPO, Statistical Country Profiles, https://www.wipo.int/ipstats/en/statistics/country_profile/profile.jsp?code=ng accessed 21st March 2022.
[xiii] US Chamber, IP Index, https://www.theglobalipcenter.com/report/ipindex2021/) accessed 23rd March 2022.
[xiv] US Chamber, IP Index, https://www.theglobalipcenter.com/report/ipindex2021/) accessed 24th March 2022.
[xv] US Chamber, IP Index, https://www.theglobalipcenter.com/report/ipindex2021/) accessed 24th March 2022.
[xvi] Emmanuel Ekpenyong, Enforcing Intellectual Property Rights In Nigeria: Navigating Towards Arbitration And Specialised Courts, https://www.mondaq.com/nigeria/trademark/1073384/enforcing-intellectual-property-rights-in-nigeria-navigating-towards-arbitration-and-specialised-courts accessed 24th March 2022.
[xvii] Docplayer, Assessment of the Methods Employed in the Valuation of Intellectual Property in Lagos State, Nigeria, https://docplayer.net/amp/203131971-Assessment-of-the-methods-employed-in-the-valuation-of-intellectual-property-in-lagos-state-nigeria.html accessed 22nd March 2022.
[xix] CCI, IP Audits: What Are They? Why Are They Important? What Do They Cost? https://www.corporatecomplianceinsights.com/ip-audits-what-are-they-why-are-they-important-what-do-they-cost/ accessed 23rd March 2022.
[xx] Olusola John Jegede, Nigeria: Procedure For Trademark Search And Online Registration In Nigeria, https://www.mondaq.com/nigeria/trademark/976986/procedure-for-trademark-search-and-online-registration-in-nigeria accessed 25th March 2022.
[xxi] Resolution law firm, Procedure for Trademark Search in Nigeria, https://www.resolutionlawng.com/procedure-for-trademark-search-in-nigeria/ accessed 25th March 2022.
[xxii] Nuel partners, CHALLENGING REFUSED TRADEMARKS IN NIGERIA, https://www.linkedin.com/pulse/challenging-refused-trademarks-nigeria-nuel-partners accessed 29th March 2022.
Disclaimer: The present article intends to provide general guidance on the subject, and you can also consult us in your specific case.