Patent, copyright, and trademark are all methods of protecting the legal rights of different intellectual property of individuals and corporations. Although the laws, practice, and procedure that governs these individual species of intellectual property is different, but they all serve the same purpose of protecting intellectual property of owners or authors or inventors in the marketplace.
This article will examine Patent, Copyright, and Trademark as intellectual properties in Nigeria.
A patent is a legal technique initiated to protect one’s invention that is new and useful to encourage innovation. The right to a patent in respect of an invention is usually vested in the statutory inventor, which is the person who whether or not is the true inventor, is the first to file or to validly claim a foreign priority for a patent application.
A patent is regulated by the Patent and Designs Act 1971 and application to register for a patent is made to the Trademark, Patents, and Design Registry, Commercial Law Department of the Federal Ministry of Industry, Trade and Investment in Nigeria.
A patent obtained protects new inventions such as new processes, machines, electronics, and chemical compositions. For an invention to be patentable in Nigeria, it must meet the following conditions as provided in Section 1(1) of the Act, which provides that an invention is patentable if;
- If it is new, results from inventive activity and is capable of industrial application or;
- If it constitutes an improvement upon a patented invention and also is new, results from an inventive activity, and is capable of industrial application.
A patent once granted by issue of documents containing particulars of the registration such as (number of the patent, description of the invention, name of the inventor, etc), to a statutory inventor confers on him the right to preclude others from making, importing, using, selling or applying a process of the registered patented invention as provided by Section 6 of the Act.
A notable feature about a patent is that an application for a patent license shall relate to only one invention at a time but may include in connection with that invention claims or protection for any number of products; any number of manufacturing processes for the resulting processes of the products; any number of applications of those products and for the means of working those processes. This is a strict requirement as provided in Section 3(3) of the Act.
A Patent granted by the Registrar is valid for a period of twenty years as Section 7 of the Act provides that a patent shall expire at the end of the twentieth year from the date of the filing of the patent application and such grant can lapse if the prescribed annual fees are not duly paid to the Registry.
Copyright is the exclusive right granted to an originator of creative work to use, publish, perform the work, produce, publish, perform the work, produce and reproduce the work for a given period of time. It protects original creations in literary, musical, and artistic works. This protection grants the creator, the exclusive right to control the use of his creative works and prevent authorized persons from copying, adapting, or passing off creative works as theirs.
The Copyright Act 1988 is the principal law that regulates and protects copyrights in Nigeria, while the regulatory agency that supervises authorizes, and grant Copyright Certificates is the Nigerian Copyright Commission (NCC). The Act makes provisions for the protection, registration, transfer, infringement, and remedy of the creative works of authors, artistic works, songwriters, music publishers, cinematograph films, photographers, and all rounds creative in Nigeria.
It is important to state that not all works can be copyrighted as Section 1 of the Act provides that the following listed works are eligible for copyright;
- Literary works;
- Musical works;
- Artistic works;
- Cinematograph films;
- Sound recordings and;
For the above literary, musical, or artistic works to be eligible to be copyrighted, the following conditions must be fulfilled as provided by Section 1(2) of the Act.
- Sufficient effort was expended in making the work to give it its original character;
- The work has been fixed in a definite medium of expression that is now known or to be developed later from which it can be perceived either directly or with the aid of any machine;
- At the time the work was made, it was intended by the author to be used as a model or pattern to be multiplied by an industrial process.
- The work will not also be eligible to be copyrighted by reason that the making of the work or the doing of any act in relation to the work involved an infringement of copyright in some other work.
The rights enjoyed by a copyright holder are limited to the duration of the lifetime of the copyright holder and 70 years after his deathbefore the work falls into the public domain. If the copyright belongs to the government or a corporate body, then the work will be valid for a duration of 70 years after the work was first published.
For films, sound recordings, performances, the holder enjoys copyright for 50 years from the time the work was first published
A trademark is a sign, word, mark, logo, symbol, pattern, or colour that distinguishes one’s unique goods or services from that of others to make it easily recognizable and relatable to a brand in a commercial market in Nigeria. It is registered to protect one’s brand and prevent a party from registering a similar or identical trademark. The Trademark Act of 1967 (Laws of the Federation of Nigeria) LFN 2004 regulates trademarks in Nigeria, while the trademark License is registered and obtained at the Trademarks, Patents and Designs Registry, Commercial Law Department of the Federal Ministry of Industry, Trade and Investment in Nigeria.
Section 9 of the Act makes the provision of what can be accepted for registration as a trademark, and these are;
- A name of a company, individual, or firm represented in a particular or special manner
- The signature of the applicant for registration
- An invented word or words
- A word or words having no direct reference to the character or quality of goods not being in its ordinary specification a geographical name or surname
- Any other distinctive mark.
For the mark to be accepted it must be distinctive, which means “adapted in relation to the goods in respect of which a trademark is registered or proposed to be registered, to distinguish goods with which the proprietor of the trademark is or may be connected in the course of trade from goods in the case of which no such connection subsists”.
Trademark registration in Nigeria gives the License Holder the right to exclude others from violating or wilfully copying the registered mark, symbol or logo by a third party without consent. The exclusive right shall be deemed infringed by a third party not being the proprietor using it without the permission of the owner or uses a mark so resembling as is likely to deceive or cause confusion in the minds of the general public.
A trademark once registered is valid for an initial period of seven (7) years but is subject to renewal for a subsequent period of 14 years from time to time in accordance with the provisions of the Act as provided in Section 23(1).
In conclusion, patents, copyright, and trademark are used in the context of intellectual properties owned by individuals, corporate bodies, or the government. Although they are similar in the sense that they serve to protect the creative works that are original and tangible, they are also different in the purpose they serve, in the laws that regulate them, and in their practice as outlined above.