In the contemporary commercial world, lots of work and effort are being put in by business persons to ensure maximization of profit. At the zenith of these efforts lies creations and inventions which springs forth from the human mind, and is capable of facilitating the growth of the business in one way or another. Over time, it became necessary for the law to protect these rights against adoption by other business persons and organizations. The reason for the establishment of Intellectual Property Laws.
The aim of this article is to break down the concept of IP in the simplest of terms, propped with relatable examples that will assist your adequate understanding.
2. Definition of terms:
Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.
Infringement: A violation or breach of a law. An encroachment on a right, a person, a territory, or a property.
Remedy: A means of legal reparation for a wrong done to another.
3. Concept of Intellectual Property:
Intellectual property (IP) is an intangible creation of the human mind, usually expressed or translated into a tangible form, that is assigned certain rights of property. Intellectual property law basically covers the protection of copyrights, patents, and trademarks, as well as other legal areas, such as trade secrets, unfair competition. In effect, intellectual property laws give the creator of a new and unique product or idea a temporary monopoly on its use. It therefore has the potential to be one of the most valuable assets a person or small business can own.
Who is entitiled to Copyright protection?
The Copyright Act Chapter C28 Laws of the Federation of Nigeria 2004 (Copyright Act), does not define the word “works”. However, Section 1 (1) of the Copyright Act provides that the following shall be eligible for protection:
Any work that is created which does not fall under the above categorisation cannot vest copyright in its creator. Furthermore, it is not sufficient to have created a work; such work will only be eligible for legal protection if:
“(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.“
It is deduceable from the above statutory provision that the moment a literary, musical or artistic work has been fixed in a definitive form and effort has been expended on the work to give it an original character, it qualifies as a work eligible for protection. Inotherwords, “e dey my mind no be excuse.”
RIGHTS CONFERRED ON A COPYRIGHT OWNER.
Copyright in Literary and Musical works for example, guarantee the exclusive right of the owner to reproduce, publish, perform, adapt, distribute, sell and broadcast. An artistic work will also guarantee the owner the exclusive rights of control of the reproduction, publication and adaptation of the work. In the case of a cinematographic film the copyright owner has the exclusive control to make copies, record and distribute copies. In respect of sound recording, the copyright owner can exclusively control the direct or indirect reproduction and distribution.
Lastly, the copyright owner of a broadcast can also exclusively control the recording and communication of the work.
A patent is a monopoly in respect of an invention. The Patents and Designs Act, Chapter P2 Laws of the Federation of Nigeria 2004 (the ‘Patents and Designs Act”) governs the registration and practice of patents in Nigeria. To qualify for a patent, an invention must comply with the following requirements:
1. It must be a new or novel invention or an improvement upon a patented invention;
2. Which results from an inventive activity; and,
3. Is capable of industrial application.
An invention is new or novel if it does not form part of the state of the art. State of the art means everything concerning that art or field of knowledge which has been made available to the public anywhere or at any time.
Patents cannot be obtained in respect of plants, animals or any biological process for the production of plants and animals. A patent also cannot be granted in respect of respect of inventions which exploitation would be contrary to public order or morality.
World Intellectual Property Organisation (WIPO) which defines a trademark as a sign, logo or word that is used to identify certain goods and services as those produced or provided by a specific person or organisation.
Based on the foregoing definitions, it is evident that the primary aim of a trademark is to protect a person’s goods and services. This will also prevent those who do not have the rights to a trademark from using a similar mark such that it is likely to deceive or cause confusion in the course of trade in relation to any goods in respect of which it is registered.
How do you identify a trademark?
A trademark can be a combination of colours or can be made up of single colours. It can be a word, a combination of words, numerals, drawings, abbreviations, drawings or shapes. Examples of familiar trademarks include; BMW, Coca-Cola, the Apple logo, etc.
Regardless of whatever form or shape the trademark takes, it must be distinctive and must be capable of distinguishing the goods or services with which it is used. Thus a name that simply describes the nature of the goods and services that are offered may not constitute a valid trademark. For example, “stationary”.
It is advisable to register trademarke. They must be registered in each country where the proprietor would want them to enjoy protection. Except a trademark is protected in a particular country, it can be freely used by third parties. By registering his trademark, the proprietor is given the exclusive rights to use the trademark to identify his goods or services and can also prevent third parties from using an identical trademark for similar goods or services.
Remedies for Intellectual Property Rights Infringement:
An infringement of intellectual property rights gives rise to the remedies of damages, injunctions and account of lost profits.
Regarding breach of copyright, section 127 of the Copyright and Related Acts 2000 states that an infringement of the copyright in a work is actionable by the copyright owner. The award made is a matter usually for the court’s judgment and discretion, as Section 128 (1) makes clear:
“The court may, in an action for infringement of copyright award such damages as, having regard to all the circumstances of the case, it considers just”.
It is accepted that the plaintiff will normally seek to obtain the amount by which the value of the copyright of the plaintiff has been diminished. This is often calculated by looking at the volume of sales made by the defendant of the pirated work by way of the unauthorised reproduction and sale. This approach, however, does not always provide adequate compensation to the plaintiff. The plaintiff may be able to show that his product was more expensive and had a higher profit margin than the pirated work, so merely giving the plaintiff the defendant’s profit may not compensate the plaintiff for lost volume of sales. This is particularly important and some cases hold that where the defendant’s product undercuts the plaintiff’s product, this should be reflected in the compensation award – Polygram Records Inc -v- Raben Footware Pty. (1996) 35 IPR 426 at 444.
Further, the normal remedies of obtaining an injunction and an account of profits will be available to the owner of the copyright which has been infringed, as is made clear in subsection 3 of section 128:
“In exercising its powers under subsection (1) in addition to or as an alternative to compensating the plaintiff for financial loss, the court may award aggravated or exemplary damages or both aggravated and exemplary damages.”
With regard to patents, the remedies available are specifically identified in section 47 of the Patents Act 1992 which states that:
“the proprietor of the patent in respect of any act of infringement which he alleges is entitled to make a claim –
(a) for an injunction restraining the defendant from any apprehended act of such infringement;
(b) for an order requiring the defendant to deliver up or destroy any product covered by the patent in relation to which the patent is alleged to have been infringed or any article in which the product is inextricably comprised;
(c) for damages in respect of the alleged infringement;
(d) for an account of the profits derived by the defendant from the alleged infringement;
(e) for a declaration that the patent is valid and has been infringed by the defendant.’
A plaintiff in patent infringement proceedings may claim damages in respect of such infringement under Section 47 (1) (c) or an account of profits derived by the defendant under Section 47 (1) (d). However a plaintiff cannot be awarded both damages and an account for lost profits as section 47 (2) provides:
“The Court shall not, in respect of the same infringement, both award the proprietor of a patent damages and order that he shall be given an account of the profits.”
The reliefs available for infringement of Trademarks are set out in ss 18 (2) Trade Marks Act 1996:
“In an action for infringement of a registered trade mark all such relief by way of damages, injunctions, accounts or otherwise shall be available to the proprietor as is available in respect of the infringement of any other property right.”
An award of damages in Trademark disputes is essentially an attempt to put the proprietor into the same position as if the infringement had not occurred. This means that any damages awarded will be compensatory rather than punitive or exemplary.
An account of lost profits is an alternative remedy to damages, and being an equitable remedy it is discretionary. It is essentially an accountancy exercise and deprives the defendant of profits made as a result of the infringing activity. When a plaintiff elects in favour of an account of profits, he will in the normal case, get an account of what the defendant expended upon manufacturing the goods, the price received for their sale and obtain an order for the difference.
This topic is quite a broad one and cannot be exhausted in one article. Therefore, the comment section is open for questions and observations. Thank you.