In today’s global marketplace, the protection of innovative ideas has become an essential tool for the progress of any commercial enterprise. Intellectual property (IP) is a category of property that includes intangible creations of the human intellect, and primarily encompasses copyrights, patents, and trademarks. It also includes other types of rights, such as trade secrets, publicity rights, moral rights, and rights against unfair competition. Artistic works like music and literature, as well as some discoveries, inventions, words, phrases, symbols, and designs, can all be protected as intellectual property.
The main purpose of intellectual property law is to encourage the creation of a large variety of intellectual goods. To achieve this, the law gives people and businesses property rights to the information and intellectual goods they create, usually for a limited period of time. Because they can earn profit from them, this gives economic incentive for their creation. These economic incentives are expected to stimulate innovation and contribute to the technological progress of countries, which depends on the extent of protection granted to innovators.
We shall be taking a look at the various types of intellectual property in the next few weeks. Trademark is our focal point for this week.
A trademark is a recognizable sign, design or expression which distinguishes products or services of a particular party form those of others in the course of trade. A trademark serves to exclusively identify a product or service with a specific company, and is recognition of that company’s ownership of the brand. Trademarked products are generally considered as a form of property. A trademark is typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements. There is also a range of non-conventional trademarks comprising marks which do not fall into these standard categories, such as those based on colour, smell, or sound (like jingles). All industries thrive on Trademarks.
One of the main purposes of having a product trademarked is to protect the product from being used without permission of the trademark owner. The trademark owner can be an individual, business organization, or any legal entity. A trademark may be located on a package, a label, a voucher, or on the product itself. For the sake of corporate identity, trademarks are often displayed on company buildings e.g MTN, Glo, Airtel etc. A trademark identifies the brand owner of a particular product or service. Trademarks can be used by others under licensing agreements.
In Nigeria, the registration of trademarks is regulated by the Trade Marks Act. The government agency in charge of the registration of trademarks is the Trademarks, Patents and Designs Registry, Commercial Law Department, Federal Ministry of Industry, Trade and Investment.
For a mark to be eligible for registration in Nigeria there must be evidence of distinctiveness. It must be capable of distinguishing the goods in respect of which it is registered from the goods that have no connections with the proprietors of the mark. It must also contain or consist of at least one of the following essential particulars:
a) The name of the company, individual, firm represented in a special or particular manner.
b) The signature of the applicant for registration or some predecessor in his business.
c) An invented word or invented words.
d) A word or words having no direct references to the character or quality of the goods, and not being according to its ordinary signification a geographical name or surname.
e) Any other distinctive mark.
Requirements for Registration
• Applicant’s details.
• Trademark Information: The representation must be clear and distinct. If to be filed online, soft copies are to be provided in jpeg format at a minimum of 1200 dpi.
• The full range of goods covered or proposed to be covered by the trademark.
• Power of Attorney/Authorization of Agent with full particulars of the applicant.
a) The usual market practice is to instruct a local Attorney/Agent in Nigeria, who would file and process applications at the Registry of Trade Marks. A Power of Attorney/Authorization of Agent Form would be completed in favour of such local Agent, as the enabling instrument to act for the principal/ Applicant.
b) After filing the application for trade mark registration, the Registrar issues an official acknowledgement reflecting the official number and filing date of the application.
c) A search is conducted so as to confirm if it is different from existing or pending registration. If the Registrar finds the trademark acceptable for registration, the applicant will be furnished with a letter/notice of acceptance.
d) Every trade mark application must be advertised in the Nigerian Trademark Journal, and is open to opposition for a period of two (2) months from the date of advertisement.
e) If no objections are received within the specified period or no objections are sustained, the Registrar will issue the applicant with a certificate of registration.
f) When issued, the Registration Certificate will have the date of initial filing of registration.
A trademark is valid in Nigeria for an initial period of 7 years, and then for further renewable periods of 14 years. An application for renewal should be made not less than three (3) months from the due date.
Why Register your Trademark?
Once a trademark has been registered, the owner/proprietor is deemed to have the exclusive right to use that mark in relation to his products and services. Any unpermitted attempt to use such trademark becomes an offence against the owner.
The owner’s legal benefit further extends to entitling him to institute any legal proceedings to prevent, or to recover damages for the infringement of the registered trademark, to restrain or to recover damages for such infringement.
Another significant reason for registration is its certification (authentication) function. This means that the distinguishing mark would become the platform for its customers to identify and by extension, guarantee the quality of the goods or services provided. The swoosh sign for instance might be what a customer needs to see to be certain that he is buying an original Nike footwear.
Furthermore, you can technically own your trademark forever. There is no limit on how many times you can renew it. Some of the most recognized brands in the world today have been around for over a hundred years. Mercedes was first registered in 1900. Pepsi-Cola was registered in 1896. So if you want to build a business dynasty that could potentially be in existence in the next century then register your trademark today!
Beyond the advantages highlighted, if you do not register your trademark, other businesses may be able to use it, or register it and prevent you from using it later. Your competition might employ this in sabotaging your efforts and deliver a sucker punch.
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