The main objective contemplated by intellectual property law is to protect ideas and expressions. Intellectual property (IP) law strives to achieve this end by giving creative individuals and businesses that bring to life their ideas, the property rights to the information they produce. Thus, IP law offers creative individuals the opportunity to profit from the information, which is the economic incentive to produce it.
The question now becomes whether the Nigerian IP laws fully protect ideas and expressions? The laws governing intellectual property in Nigeria cover copyright, trademark, patent, and industrial designs.
Copyright attracts investment to the production and distribution of literary and artistic works by promising authors and artistes’ exclusive rights for a limited period of time. Patent laws use property rights to stimulate private investment in new, useful, and non-obvious technologies. And, trademark laws provide means for the consumer to separate or distinguish one manufacturer’s goods from those of another.
It is imperative that intellectual property rights are protected at all cost because it adds to the society’s advancement. A person, author, entertainer, writer, etc., invests in producing a work and if the producer of such works does not recoup his investments, future and aspiring producers will be discouraged from producing information. Imagine what this world would be like without Edison’s light bulb.
My attention turns to trademark law in Nigeria, which appears to be the legal regime for ideas and expressions. Trademark law in Nigeria encourages businesses to invest in names and slogans that signify the source of their goods by prohibiting competitors from using these same symbols on their own wares.[1] Unfortunately, Nigerian trademark law ignores services as an object of commerce that should be protected.
This is unlike the position in the United States (US) where trademark law which governs the source of goods, extends to protect words, names, symbols, or other devices, or combinations thereof that serve to identify the source of “services” and distinguish them from others. The relevant legal regime for trademark in US is the Lanham Act, which provides for the registration of service marks. Section 45 of the Lanham Act defines service mark as “a mark used in the sale or advertising of services to identify and distinguish the services of one person, including a unique service, from the services of others and to indicate the source of the services, even if that source is unknown.”
The American Heritage dictionary defines service, amongst other things, as the employment of work for another, the installation or repairs provided by a dealer or a manufacturer. In the matter of Canadian Pacific [2], service is defined as “the performance of labor for the benefit of another.” A service mark identifies and serves to distinguish the sources of competing services from each other. For example, famous service marks in the US are Holiday Inn for hotel services and McDonald’s for restaurant services.
As a result of Nigeria’s evolution, a new facet of business known as the service industry has emerged. Various service industries exist in Nigeria today with each service industry having a number of competitors in the same line of providing services. The various industries in the same line of business have different logos, words, or an aggregate of color combinations which are used by or associated with the service company. In Nigeria today, when we hear “Rule your world” we think of Glo network, which is a telecommunications service provider. Similarly, when we see the yellow background on a billboard with the word “Y’ello” we identify or think of MTN telecommunications services.
Given the growing trend in service industries in Nigeria, the need for a well-developed trademark law aimed at adequately protecting service marks becomes inevitable. The danger of not having a good legal regime for the protection of service marks may be colossal. For example, Company A and Company B provide telecommunication support services. Company A promotes a successful brand known as the “Quicky Serve,” which provides 24-hour telecommunications support services to the public. Company A’s new brand has increased Company A’s client base, who now identify the service with the slogan “Quicky Serve.” Company B, a new company, comes into the marketplace much later and adopts the slogan used by Company A, “Quicky Serve.” The consumers are not aware of the distinction between Company A and Company B because they have become so accustomed to “Quicky Serve,” thus Company A loses its market share and customers are disappointed with the service provided by Company B.
In this scenario, apart from losing its market share and customer satisfaction, Company A may have no recourse to legal remedies against Company B because it engages in the provision of services alone, which is not covered in the Trade Marks Act in Nigeria.
Given this gap in trademark law concerning service marks, there is a genuine need for a re-think and overhaul of the trademark regime in Nigeria. Thus, it is suggested that a more practical and realistic trademarks law fashioned after the US Lanham Act of 1946, which would not only protect goods alone but give protection to services as well, would be a positive step in the right direction. And, this would be a spur to our economy.
[1] See generally, Section 3, 4, 5, 6 and 10 of the Trade Marks Act, Cap.T13, Laws of the Federation of Nigeria 2004.
[2] Canadian Pacific Ltd., 754 F.2d 992, 224.
Originally posted at http://www.chanceryscribe.com. Permission to re-publish granted to Afribiz.
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