No matter how advanced a country is, a perfect legal system is almost unattainable and remains a continuous process. Resultantly, concerned bodies in countries are often keen on making relevant improvements to achieve the purpose of the obligations or rights under their laws. Unfortunately, it is difficult to say the same for Nigeria regarding intellectual property rights (IPRs). Simply put, IPRs (i.e. trademarks, copyrights, patents, etc.) are rights vested on individuals due to the creations or inventions of their minds for some time. One of Nigeria’s Intellectual Property laws – the Trademark Act – was adopted more than 50 years ago. Yet some people still regard Intellectual Property law as an “emerging area of law” in Nigeria. In consideration of the state of these rights, one may want to agree with them or at least be understanding of them. Despite the remoteness from novelty or the long existence of Intellectual Property Rights, they are laced with both popular and unpopular recurring problems. On that note, the following is an examination of the abundance of challenges surrounding intellectual property rights in Nigeria.

Outdated laws

Nigeria’s major legislation for Intellectual Property Rights includes the Trademark Act of 1965, the Patent and Designs Act of 1972, and the Copyright Act of 1992. Notwithstanding the amendments made to some of these laws, they cannot handle recent issues that were not envisaged because of technological advancements and globalization.

It is appalling that the government has not made adequate efforts to enact newer laws to solve these issues. Apparently, lawmakers or those tasked with making Intellectual Property related regulations seem not to be as active as their counterparts. Mauritius has the Industrial Property Act 2019, which made reforms in the areas of patents, geographical indications, trademarks, etc.

Specifically, our Intellectual Property laws do not sufficiently cover issues bordering on software, the internet, privacy, and competition. With the current Copyright Act, where, for instance, another reproduces and sells a book without authorisation, the law specifies the solution. Presently, copyrighted works are now infringed on increasingly and differently on the internet. In this case, the law is silent on how to enforce the owner’s rights. Countries that have recognized this need have made enactments or revisions to that effect. Kenya’s Copyright Amendment Act 2019 and the United States’ Digital Millennium Copyright Act are a few.

In addition, there has been a shift in what constitutes a trademark. However, Nigeria seems stuck with traditional marks, like shapes, slogans, etc. While this is still commendable, other countries have incorporated unconventional trademarks into their laws. For instance, in India, sounds can be trademarked and in Malaysia, scents are trademarkable. Consequently, business owners may be unwilling to come up with unconventional marks, thereby stifling creativity. Even if they do, they will be at risk of infringement without remedies.

Furthermore, penal awards like fines and terms of imprisonment are out of tune with current realities. The criminal penalty for some cases of copyright infringement ranges from a fine of 100 naira (0.24 cents) to 1,000 naira ($2.41) or up to 5 years in prison. There is no criminal liability for trademark infringement, but the fine for false representation of a mark is 200 naira. Resultantly, holders may be unwilling to institute criminal proceedings due to the loss they will incur in the long run. Fortunately, the Cybercrimes Act 2015 limits the fine to $5 million or two years in prison.

Finally, although Nigeria is a signatory to many treaties, it seems not to be a treaties-friendly country. This is due to her low ratification rate. In a report, Nigeria scored 28.57% in membership and ratification of international treaties. For example, the Patent Cooperation Treaty (PCT) and the Agreement on trade-related aspects of intellectual property (TRIPS) have not been domesticated by the legislature. As a result, where any of the provisions have not been made into national legislation, they cannot be enforced by anyone.

The above reflects the need for improvements.

Low recognition of Intellectual Property Rights in Nigeria

The higher the level of value individuals or corporations believe they can gain from their creativity, the more effort they can make to protect it. However, this belief does not exist automatically. Non-governmental and international organizations often play sensitization roles. However, if the government, which should play a leading role, wants to ensure the compliance of a directive, the basic step is to sensitize the public. Sadly, the Nigerian government, either due to ignorance or indifference, has been putting little effort into this, thereby limiting
IPRs recognition.

Governments that recognise Intellectual Property Rights invest in the education of the public. Japan and Korea once partnered with the World Intellectual Property Organization (WIPO) to create IP-related programs and cartoons for diverse age groups, like & quot; Picture Frenzy for Pororo. & quot; The Canadian Intelletual Property Office hosts webinars yearly. The number of creations and innovations, as well as Intellectual Property registrations, in a country reflects the level of awareness and understanding of Intellectual Property Rights or the value placed on them. In Canada, between 2020 and 2021, there were 76,168 trademark applications, of which over 30,636 were from citizens. Nigeria recorded 14,690 trademark applications in 2019 and 423 patent applications by residents and non-residents 12 in 2020. Indeed, various factors can cause this. Nonetheless, we must first blame the government and possibly its agencies for the ridiculous, almost non-existent level of sensitization. The reality is likely to be different if adequate efforts are made.

In addition, people may be unwilling to register their rights due to the monetary implications. If they are informed of the benefits of Intellectual Property protection, like the attraction of investors, it can enhance creativity and eliminate their reluctance to protect their rights.

Consequently, since the government does little in sensitization and people do little to protect their Intellectual Property, the public does not see Intellectual Property as a sacred right to property. Hence the high level of infringement.

In conclusion, sensitization may not spur everyone to register their Intellectual Property or eliminate infringement. However, it can go a long way toward motivating people to protect their rights and reducing infringement.

Low enforcement of Intellectual Property Rights

Nigeria’s enforcement of Intellectual Property Rights is low. This is well known locally and globally. On the one hand, this is due to peoples lack of effort in ensuring the protection of their rights or taking action against infringers. Unfortunately, the law is not Santa Claus—it will only give you what you request after considering its merits. A study of Intellectual Property cases shows that there are not many of them.

Furthermore, due to the ineptitude of some agencies, the tracking and seizure of counterfeit or pirated products is almost nonexistent. A global report states that Nigeria enforcement of Intellectual Property Rights in 2020 was just 17.21% and software piracy was estimated at 80% by BSA (The Software Alliance). Again, matters that make it to court may not be interpreted based on the provisions of the court. This may be due to a lack of expertise or knowledge by judges and the technical nature of Intellectual Property. For instance, in Tv Xtra Production Ltd. V National Universities Commission & Zain Nigeria, the federal high court held that it is only copyright registration that makes one eligible to claim copyright ownership. This is contrary to the copyright act, which makes protection automatic.

In conclusion, there is a need to educate the public, ensure that relevant agencies do their jobs, and possibly the establishment of specialized Intellectual Property courts to record better enforcement of Intellectual Property Rights.

Low recognition of Intellectual Property as an intangible asset

Intellectual Property is an asset, albeit intangible. Intellectual Property, like physical assets, can be used to determine the success or monetary value of a brand. But this is not well recognized in the case of Intellectual Property in Nigeria. Consequently, concepts like Intellectual Property auditing, identification of Intellectual Property assets and valuation, determination of the value of Intellectual Property are novel and almost nonexistent among individuals and even Nigerian corporations.

Furthermore, due to its novelty, those involved in the exercise, such as auditors, lawyers, or valuers, may not be trained in that area. Thus, businesses miss out on the benefits of carrying out an Intellectual Property auditing or valuation, such as the identification of Intellectual Property related threats, preservation and enhancement of the value of their Intellectual Property, and the opportunity to use their assets as financing collateral.

In conclusion, professionals should leverage self-learning to advise their clients appropriately.

Low leverage on technology

Technology helps make activities more efficient. Hence, its adoption in facilitating Intellectual Property Rights related activities by countries. Although Nigeria has improved over the years, it is still behind the moving bus.

To begin with, Nigeria still manually does certain processes that could be conducted electronically, such as trademark or patent searches or opposition proceedings. While one can conduct trademark searches online, the irony is that they are rarely regarded as reliable. Manual search is often resorted to & quot; for greater accuracy & quot; and is even regarded as & quot; the actual search. & quot; However, in the United States (US), through the Trademark Search System (TESS) portal, trademark searches can be efficiently conducted before registration. This is also obtainable 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 & quot; registrar is often very slow and reluctant to give a hearing date due to the cumbersome workload it is faced with. & quot; Owners will find the entire process frustrating as a result of this.

We can say the same for trademark opposition proceedings. In the US, the Trademark Trial and Appeal Board (TTAB), using the electronic system for trademark trials and appeals (ESTTA), conduct these.

In conclusion, the adoption of online processes could save everyone time and money.

Conclusion: The existence of obsolete laws, low recognition of Intellectual Property as a right and intangible asset, little enforcement, and inadequate leveraging of technology hamper the exercise and enjoyment of Intellectual Property Rights. This shows there are more challenges than ever faced in the country. To ensure Intellectual Property holders enjoy their rights fully, we need a total overhaul or a revision of the existing Intellectual Property systems. Furthermore, since economic and technological advancements can be an incident of a strong Intellectual Property system, which is beneficial to the public at large, maximum efforts must be exerted by the government or relevant bodies. While the various comparisons above are not to place various countries side by side with Nigeria, they are to reflect how far behind the world has left Nigeria.

References:

  1. 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.
  2. Rule 26 (5) Trade Mark Rules, 2017
  3. US Chamber, IP Index, https://www.theglobalipcenter.com/report/ipindex2021/ accessed 22 nd March.
  4. 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.
  5. Section 18 Copyright Act.
  6. Section 61 Trademark Act.
  7. Section 25 Trademark Act.
  8. US Chamber, IP index, https://www.theglobalipcenter.com/report/ipindex2021/ accessed 21st March 2022.
  9. WIPO, Building respect for IP, https://www.wipo.int/enforcement/en/awareness-raising/ accessed 21st 2022.
  10. Government of Canada, Seminar Series, https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr04235.html accessed 21 st March 2022.
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  13. US Chamber, IP Index, https://www.theglobalipcenter.com/report/ipindex2021/) accessed 23rd March 2022.
  14. US Chamber, IP Index, https://www.theglobalipcenter.com/report/ipindex2021/) accessed 24th March 2022.
  15. US Chamber, IP Index, https://www.theglobalipcenter.com/report/ipindex2021/) accessed 24th March 2022.
  16. 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.
  17. 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.
  18. WIPO, intellectual property audits, https://www.wipo.int/sme/en/ip_audit/ accessed 25th March 2022.
  19. 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 23 rd March 2022.
  20. 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.
  21. Resolution law firm, Procedure for Trademark Search in Nigeria, https://www.resolutionlawng.com/procedure-for-trademark-search-in-nigeria/ accessed 25th March 2022.
  22. 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.

Author

  • Title

    Mercy Munachimso Nwaogazie is a 500 level law student at Nnamdi Azikiwe University, Nigeria. She aims to become an international intellectual property (IP) law expert and a prolific legal content writer. She understands the need for individuals, businesses, and startups to protect their intellectual properties (IP) and to have various IP strategies. With her knowledge and skills, she seeks to advise them, expose them to IP laws, and influence them to see how these various laws can protect them. Her interest in writing led her to be a member of the NAU Law Review for 2+ years. As an IP law enthusiast, she has completed several related courses on WIPO and Coursera. She is currently pursuing a diploma in US intellectual property law and paralegal studies. To practice her knowledge, she participated in a couple of competitions, like the My Intellectual Property Law Guide (MIPLG) 2020 debate competition.