Intellectual property is like any other property belonging to an individual as it is capable of being owned and administered. Likewise, intellectual property like personal and real property is also capable of being subject to abuse. Therefore, there is a necessity for holders of intellectual property rights to ensure that their rights not only duly recognised by law but are capable of being enforced. Intellectual property rights ranges from copyright to trademarks and trade secret. This paper discusses the laws of intellectual property right under trade secrets, copyright, and trademark in Nigeria and their means of enforcement.

Protection and Enforcement of Copyright in Nigeria

Copyright has proven to be an important tool for the protection of ideas fixed in writing. The Nigerian Copyright Act, states that original, literary, musical and artistic works, cinematography films, sound recordings, and broadcasts are eligible for copyright, and the same is vested on the author or the commissioner of the work depending on the circumstances that birth the work. The types of works eligible for copyright are stipulated and can fall on any of the above lists. Additionally, Section 39 of the Act affords computer programing and dance choreography copyright protection as literal works are stipulated to include these forms of works and works similar to them.

Copyright is vested on a work in Nigeria when sufficient effort has been expended on work to give it an original character. Therefore there is no requirement for registration, although the owner of such copyright may take the extra step by registering the said copyright with the Nigerian Copyright Commission.
Any of the following constitutes unauthorised use of the said copyright under Section 15 (1) Copyright Act :

• Does, or cause any other person to do an act, the doing of which is controlled by copyright;
• Imports into Nigeria, otherwise than for his private or domestic use, any article in respect of which copyright is infringed under paragraph (a) of this subsection;
• Exhibits in public any article in respect of which copyright is infringed under paragraph (a) of this subsection;
• Distributes by way of trade, offer for sale, hire or otherwise or for any purpose prejudicial to the owner of the copyright, any article in respect of which copyright is infringed under paragraph (a)of this subsection;
• Makes or has in his possession, plates, master tapes, machines, equipment or contrivances used for the purpose of making infringed copies of the work;
• Permits a place of public entertainment or of business to be used for a performance in the public of the work, where the performance constitutes an infringed of the copyright in the work, unless the person permitting the place to be used is not aware, and had no reasonable ground for suspecting that the performance would be an infringement of the copyright;
• Performs or cause to be performed for the purposes of trade or business or as supporting facility to a trade or business or as supporting facility to a trade or business, any work in which copyright subsists.

A copyright owner can enforce such rights through civil or criminal proceedings or both. Specifically, Section 16 of the Act provides for the following remedies:

• Damages- generally an award of damages is renderable when are law presumes losses flowing from the wrong complained of by the victim.
• Injunction- these are equitable reliefs that prevent or mandate the performance of an act. They come in diverse forms from the interim, interlocutory and Mareva injunctions.
• Anton Piller order- this is a special court order that permits the owner of a copyright to search the property of the infringer for articles that infringe his/her copyright. In the case of Pillar Kg v Manufacturing Process Limited, the court held:
  “This specie of injunction is granted whereupon application inter parties the party to enter upon the premises owned by another party and inspect property kept there. It is an order commanding the Defendant to accord the Plaintiff permission to inspect his premises breach of which would be contempt.”
• Account of Profits- similar to the provision of damages, but distinct in that the remedy is against the profit made by the infringer as the owner would be entitled to compel the infringer to account for all the profit unduly made.
• Criminal action- Section 20 of the Act provides for a term of imprisonment not exceeding two years for infringement of copyright.

The duration of protection under the law is 70 years for literal, artistic and musical works and 50 years for films, photographs and sound recordings. Thereafter, the works would belong to the public domain for anyone to make use of.

Protection and Enforcement of Trade secrets in Nigeria

The Black’s Law Dictionary defines trade secrets as: “A formula, process, device, or other business information that is kept confidential to maintain an advantage over competitors; information — including a formula, pattern, compilation, program, device, method, technique, or process.” The importance of trade secrets cannot be overemphasizes as it has been and remains an important aspect of protecting intellectual property. According to Karl Jorda:

“…trade secrets cover over 90% of all new technology, and over 80% of all license and technology transfer agreements cover trade secrets or constitute hybrid agreements relating to patents and trade secrets.”

Unlike the other forms of intellectual protection in Nigeria, there appears there is no domestic legislation specifically regulating trade secrets in Nigeria. However, Section 15 of the Nigerian Freedom of Information Act (2011) stipulates:

“A public institution shall deny an application that contains–
(a)trade secrets and commercial or financial information obtained from a person or business where such trade secrets or information are proprietary, privileged or confidential, orwhere disclosure of such trade secrets or information may cause harm to the interests of the third party, provided that nothing contained in this subsection shall be construed as preventing a person or business from consenting to disclosure…”
Unfortunately, there is no definition of ‘Trade Secrets’ in the legislation. Nonetheless Trade Secrets are advantageous in the following situations:

• The protection of inventions or manufacturing processes that do not meet the patentability criteria and therefore can only be protected as trade secrets. An example of this is a manufacturing process or customers list that cannot be protected as a patent but is considered valuable; and
• The protection of inventions that fulfil the patentability criteria but require immediate protection not possible under law of patent due to the requirement for immediate protection.
• The protection of inventions that are sought to be enjoyed beyond the time period for the protection of patentable inventions.

Trade secrets have been used to protect a myriad of rights such as the Kentucky Fried Chicken (KFC) secret recipe made up of a reportedly 11 herbs and spices, the McDonald’s Big Mac Special Sauce, and Google’s search engine algorithm. The following are avenues for the protection of trade secrets:

1. Security of the trade secret in a secure location with access to a few trusted individuals.
2. Ensuring that the employees are loyal and will not sell the trade secret to competitors and use of non-compete clauses in contract of employments.
3. Use of a confidentiality agreement or a non-disclosure agreement (NDA) with all third parties.

Closely related to the trademark is the law of passing off, which also recognises the trade name and reputation of an individual. However, whilst there is no requirement for registration to be able to take advantage of passing off, the remedies are less certain as it is not stipulated by legislation and the onus remains on the owner to prove that the products have similarities that would result in confusion. In the case of Niger Chemists Limited v Nigeria Chemists, the Plaintiff (Niger Chemist Limited) had an established chemist business using the name “Niger Chemist” while the Defendants established the same business on the same street with using the name “Nigeria Chemist”. The Plaintiff sued and claimed the name was too similar and likely to deceive the public that it had a prior relationship and reputation. The Court agreed with the Plaintiff and granted an injunction against the Defendant on the use of the name.

Protection and Enforcement of Trademark in Nigeria

It is trite that the ownership of a registered trademark confers on the registered owner the right for enforcement when a third party infringes on the use of the mark. Section 5(1) of the Trademark Act of 1967 specifically permits the exclusive right of a proprietor to use the trademark with regards to the goods it was registered under. Section 5(2) states:

“without prejudice to the generality of the right to use a trademark, the marks shall be deemed to be infringed by any person who not being the proprietor of the trademark, uses a mark identical to it or so nearly resembling it as it is likely to deceive or cause confusion in cause of trade in relation to any goods in respect of which it was registered”.

This section has been judicially interpreted, for in Ferodo Ltd. v. Ibeto Ind. Ltd Musdapher, JSC, stated:

“Following the provisions of section 5(2) of the Trade Marks Act, an infringement of a registered trade mark cannot be maintained unless the court finds that the defendant is engaged in the use of a mark identical with the registered trademark or uses a mark so nearly resembling the registered trade mark, as to be likely to deceive or cause confusion in the course of trade; or uses in relation to any goods in respect of which it is registered, or uses in such a manner as to render the use of the mark to be taken as importing a reference to the goods which the plaintiff’s trademark is connected”.

It is important to note that were the right of enforcement not utilised by the proprietor, this can lead to a weakening of the mark. This is as a result of the fact that a charge of non-use can be alleged and used as a defence by a third party and ultimately result in a loss of the registered trademark. Furthermore, it is important to note that under the Trademark Act 1965, there can only be an infringement if an identical or closely resembling mark is used on identical or closely resembling goods. The only exception to this is where the mark is a well-known or famous trademark and it will have to be via the discretion of the Registrar.
Thus, a proprietor of a registered mark aside merely registering the mark, must ensure that there is adequate policing of the registered mark to protect against an allegation of non-use that may lead to a loss of the mark. With regards to how to effectively police a mark, the following steps may be undertaken:

• Consistent and Frequent Monitoring- a proprietor of a registered trademark is to maintain the practice of constant and frequent monitoring of the marketplace for infringement of his/her mark. The duration for the checking and monitoring is to depend on variables such as nature of the goods and resources but it is advisable for it to remain constant and as frequent as possible to allow early detection. Thus, it has been said that early detection is the best offence when defending a registered mark.
• In the circumstances that there is double registration or attempted registration of a mark that is identical to that already registered by a trademark owner. The owner may send a formal application to the Registrar challenging the registration or file an opposition against the registration. The option of the formal application is preferable as there is no need to wait for it to be advertised in the Trademarks Journal.
• Cease and Desist Letter: Upon the discovery of infringement, it is common a practice for there to be sent a cease and desist letter.
• Negotiation: After receipt of a letter of reply from the infringer it is advisable to attempt negotiation to save the time and expenses involved in the litigation that would ensue in a trail and also if there was genuine lack of bad faith in the use of the identical mark.
• Filing of action: the final step should be the filing of a legal action to protect the interest of the registered owner. As held by the Supreme Court of Nigeria in Dyktrade Ltd. v. Omnia Nig Ltd:

“Trade Mark” when registered will entitle the proprietor to sue or institute an action for any infringement of the trade mark. Registration entitles the proprietor to the exclusive use of the trademark and also the right to sue for passing off the goods of the proprietor.”

It is important to note that the onus is on the owner to prove an infringement has occurred for as held in the case of Ferodo Ltd. v. Ibeto Ind. Ltd Nikki Tobi, JSC, stated:

“By the combined effect of sections 136 and 137 of the Evidence Act, the burden is on the appellants to prove that the trade mark of the respondent is an infringement of theirs and that the act of the respondent amounted to a passing-off.”

In summary, it can be seen that trademark is to protect the identity of products by preventing others from associating themselves with the goodwill the general public has with the products.

Conclusion

In conclusion, the law on intellectual property protection and enforcement in Nigeria is neither al encompassing nor tepid. The enforcement of these rights duly recognised is established within and outside the purviews of the respective legislations of each form of intellectual

property but the onus is on the owner of such a right to not only police and monitor unlawful acts of infringement but to also satisfy the court that there is indeed an act of infringement that warrants the grant of relief. A right owner must not stand aside but must actively take advantage of the laws to navigate and circumvent infringement attempts. Therefore, it is important than intellectual property rights owners not only ensure that their rights are registered and secured but that they also police and constantly monitor same.