An identifiable phrase, term, symbol, or emblem that distinguishes one product from another on the market is known as a trademark. By virtue of Section 67 of the act[i] trademark can be defined as a mark used or proposed to be used in relation to goods for the purpose of indicating, or so as to indicate, a connection in the course of trade between the goods and some person having the right either as proprietor or as a registered user to use the mark whether with our without any indication of the identity of the person and means, in relation to the certification trade mark, a mark registered or deemed to have been registered under Section 43 of this Act. The main goal of a trademark is to protect a person’s products and services and to restrict third parties from using a similar mark in the course of trade in connection to any items for which it is registered in order to deceive or cause confusion.
Trademark demonstrates legal ownership and affiliation with a certain business. Trademarks are accepted as a type of intellectual property and can either be registered formally or not. Their main purpose is to distinguish items within the bounds of the law and business, as well as to build customer recognition. They protect phrases and symbols, such as corporate logos, slogans, songs, or brand names, that denote the source, proprietor, or creator of a good or service. Similar to product trademarks, service marks serve to identify and separate the provider of services as opposed to products.
The terms “trademark” and “service mark” are sometimes used interchangeably since they both identify and differentiate the provider of a service rather than a product. By utilizing a trademark, one can stop third parties from using their goods or services without their consent. Additionally, they forbid any marks that may be mistaken for an already-existing mark. This implies that a company cannot use a sign or brand name if it is identical to one that is already registered, especially if the products or services are connected, in terms of appearance, sound, or meaning. For instance, a soft drink corporation is not permitted by law to employ a symbol that resembles Coca-Cola or a Coke.
The use of a trademark or service mark without the required authority is referred to as trademark infringement. This unlawful use may relate to goods or services and has the potential to lead to misunderstandings, misinformation, or uncertainty about the source of a specific good or service. Trademark owners have the right to take legal action when they suspect infringement. Once established, a court may order the defendant to stop using the trademark and grant the owner monetary compensation.
REMEDIES FOR TRADEMARK INFRINGEMENT
- NOTICE OF OBJECTION – When a registered trademark is being infringed upon, the owner of the trademark has the right to submit a notice of objection to the Trademarks Registry[ii]. In accordance with the Trademarks Act, anybody has the right to oppose the registration of a mark when it is published in the Nigerian Trademark Journal[iii]. Before they are officially registered, trademarks filed for registration are published in order to notify the public of the Trademarks Registry’s desire to do so. Within two months after the date of publication, anyone who believes the mark infringes on their trademark has the option to submit an objection.
- FORMAL APPLICATION – Presenting a written request for the trademark’s cancellation to the Trademark Registrar. However, this has to be backed up by proof that the owner registered the mark in the past.
- NOTIFICATION TO CEASE AND DESIT – Owners can enforce their rights by sending a cease-and-desist letter to the offending party that describes the trademark that is being violated and warns the offender to stop and desist from continuing the infringement or face legal repercussions.
- CIVIL ACTION – The Trademarks Act gives a proprietor the right to file a lawsuit for trademark infringement against the offending party. The burden of proof to establish trademark infringement is on the owner when filing a lawsuit. Damages, injunctive relief, an order from the court requiring the infringer to account for the infringement and pay the proprietor any profits, and the delivery up or destruction of the infringing items or products, among other remedies, are all accessible to the owner under this action.
Finally, the ownership of a trademark extends beyond its mere registration and issuance of a Certificate of Registration. Due to errors that might occur within the Trademark Registry which might lead to duplicate applications or admission of similar marks, diligence is essential to identifying and preventing potential trademark infringement.
COPYRIGHTS
A copyright infringement occurs when a person’s creative works are copied, published, performed in public, recorded, distributed, broadcast, or otherwise altered by another person without the consent of the copyright owner. Unlike other forms of intellectual property like patents and trademarks, copyright can be used without publication or registration on the part of the author. When an author produces material it meets the criteria outlined above, it is protected legally under the Copyrights Act.
The original owner of the rights of a work protected by copyright is typically referred to as the “Author” Of the work. The author is free to cede his rights to a third party, nonetheless. In this situation, the owner of the copyright is the one who acquired it through a transfer or another legal process. However, just because a work was produced by a person does not mean that it will immediately qualify for act as protection. The act specifies works that must be protected by copyrights[iv] and they include literary works, musical works, artistic works, audiovisual works, sound recordings, and broadcasts. However, there are a few exemptions which are explained in section 2(2):
Notwithstanding the provision of subsection (1), literary, musical, or artistic work shall not be eligible for copyright unless —
(a) some effort has been expended on making the work, to give it an
original character; and
(b) the work has been fixed in any medium of expression 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.
Section 36[v] makes provision for the infringement of copyrights
Copyright is infringed by any person who without the authorization
of the owner of the copyright —
(a) does or causes any person to do an act, which constitutes a violation of the exclusive rights conferred under this Act;
(b) imports or causes to be imported into Nigeria any copy of a work which if it had been made in Nigeria would be an infringing copy under this Act;
(c) sells, offers for sale, or hires any work in respect of which copyright
is infringed under paragraph (a);
(d) makes or has in his possession, plates, master tapes, machines,
equipment or contrivances used for the sole purpose of making infringing copies of the work;
(e) permits a place of public entertainment or business to be used for a public performance of the work, where the performance constitutes an infringement of copyright in the work unless the person permitting the place to be used was not aware and had no reasonable ground to suspect that the performance constitutes an infringement of the copyright;
(f) permits within its premises, the reproduction of a copyrighted work;
(g) performs or causes to be performed for the purposes of trade or
business or the promotion of a trade or business, any work in which copyright subsists.
Section 37 (2) provides for action(s) to be taken when infringement occurs-
“In any action for an infringement of copyright, the plaintiff shall be entitled to reliefs such as damages, injunction, accounts or as is available in any corresponding proceedings in respect of infringement of other proprietary rights”
Section 37 (5) goes on to provide thus:
Where in an action under this section, an infringement of copyright
is proved or admitted and the court in which the action is brought, is satisfied that effective relief would not otherwise be available to the plaintiff, the court, in assessing damages for the infringement, shall have the power to award such additional damages as the court may consider appropriate in the circumstances and having regard to —
(a) the flagrancy of the infringement; and
(b) any benefit was shown to have accrued to the defendant by reason of
the infringement.
Section 44 of the act spells out offenses that amount to copyright infringement and are termed criminal liability.
CONCLUSION
Aggressive measures are required to combat the growing problem of copyright infringement. Even if restrictions on the use of works protected by copyright already exist, further stringent measures need to be taken since the threat is growing. It is crucial that organizations like the Nigeria Copyright Commission and business owners regularly inform the public about the dangers of copyright infractions.
[i] The Trademarks Act 1965
[ii] Section 20 Trademarks Act
[iii] Section 19 & 20 Trademarks act
[iv] Section 2(1) Copyrights act
[v] The copyrights act 2022
Written by Esegi Maureen for The Trusted Advisors
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