Name Trademark: The Omotola Boss Move

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Omosexy was up to something very profitable in the days post-Valentine. Imagine being in Lagos on Sunday, and booking the next flight to Garki, Abuja on Monday, laced with the regular Cash Madam conventionalities. Who would blame her? She understands more than most of us that registering for anything online in Nigeria asides from JAMB is the cheapest way to salty tears.

Signed, sealed, delivered! Tuesday morning, Instagram must hear of this. She pumps up three IG posts. The first signals that something is about to hit us. The next, something more of the aspire to misfire vibe (trust Nigerians to load the comments with love, fire, and “do giveaway”). And finally, the big deal – Dr. Omotola Jalade-Ekeinde announces that she has trademarked the name “Omotola.”

Photo Credit: @spotlightpi

In split seconds, fans by the name Omotola were scared for themselves. And you could see them wondering in the comments sections what this development meant for their future. Change of name? New WAEC Certificates? Three court affidavits and five passport photographs, again? Those boyfriends who had promised their lovers that any other Omotola was a counterfeit were in the mud too. Another own goal against the patriarchy. Sigh.

There have been so many questions about what this novel event means for trademark law and names in Nigeria. We’re here to break down the legalese for the average Nigerian, student or otherwise.

So, here’s it.

Omotola Jalade-Ekeinde, MFR recently registered a trademark for her first name. However, the Trademark Database we could access didn’t have info beyond December 2020 (COVID-19 clogging the updates, apparently. Asides from this inefficiency, the Nigerian government is doing well). But from the little we can glean from the Nollywood actress, the trademark for “Omotola” falls under Class 41.

Now, there’s a lot to say here. And we’ll leave no one behind. Trademarks are intellectual property assets that cover the exclusive rights of a person or entity to a design, symbol, phrase, or word. Generally, trademarks exist with the intention of connecting the marks to a brand for commercial purposes.

That way, instead of a fairly-bitten apple reminding you of Adam and Eve, you’d rather imagine what to expect from the iPhone 13. And when someone mentions the name “IBM,” you’ll think of one of the world’s largest tech companies instead of how you couldn’t remember the full meaning during Primary 6 common entrance (you still can’t remember the full meaning, yeah? No hard feelings, just make sure you take Junior to a secondary school where they teach Computer).

Nowhere in the world does trademarks come on a platter of gold. There are a couple or more requirements to fulfil. First, it must be distinctive. A trademark shouldn’t expressly describe its brand. For instance, Screens can’t be a trademarked name for a company that produces TVs and Monitors.

In addition, the trademark must be used in commerce. There must be a use for the name either for a product or a service rendered.

Nigerian laws also prevent you from registering a mark that runs contrary to public policy and morality. If your guess is good as mine, you probably can’t trademark a brand name that speaks ill of cattle and bandits since they run contrary to Nigeria’s public policy. Follow peace with every of God’s creation, especially animals.

Moving on, trademark have classes. According to a classification system called the Nice International System of Classification, you can register your trademark in a specific group or area of commerce. There are 45 of them, ranging from chemical goods to legal services.

Back to your WCW. Her trademarked name actually is a service mark. That’s because it falls under Class 41 which covers educational and training services, entertainment, recreational, cultural, literary, and sporting services. It’s plenty, innit?

Well, the implication of this action is that no one can engage in commercial activity in any of these industries. By extension, you can’t name a movie by a title having any bearing to “Omotola.” You can’t have a stage name related to “Omotola.” Neither can a media house, educational or cultural agency go by the name “Omotola” except they are connected to Omotola Jalade-Ekeinde, that is.

You can’t even own a domain name with the trademarked identity; that will amount to cybersquatting. But there’s no problem if your birth certificate carries Omotola; we doubt you are capable of creating a confusion with the famous actress, in form and in substance.

Omotola is probably the first Nigerian celebrity to trademark her name, as far as we know. In the US, there’s a long list of professional entertainers who’ve got their names trademark – Morgan Freeman, Meryl Streep, Kylie Jenner, Beyonce, Jay-Z and the entire Carter family. This action makes big business sense because entertainers can prevent everyone else from using it across these industries. For Omotola, she can wake up one morning and decide to open Omotola Film Studios or Omotola Tutorial Centre or even Omotola Zoo & Museum. She will still be within her limits.

Photo Credit: @photokulture

Can you trademark your own name?

We must clarify here that not everyone can get away with Omotola’s actions. The primary reason we believe her name was granted was based on the name’s popularity and “uniqueness.” Any random mention of the name Omotola in Nigeria would naturally create an impression of the actress. So, it makes her trademark application for the name quite easy.

By the way, we think Omosexy would’ve made much more sense as it is more unique. Apparently, the actress claimed in an Instagram comment to her post that trademarking “Omosexy” is in the works but according to her, “the Nigerian Govt is scared of an Omosexy name not sure why.”

But for you, Tunde, your name is scattered all over the place; everybody who knows you has three other “Tundes” in their life (if we add Tunde Ednut, that makes four, lol). The same goes for Michael, Favour, Amaka, Ahmed, and especially Ife (there’s an Ife within 100 metres of your location, we can bet our life savings). No one can reasonably connect the name exclusively to you.

What’s more? Your name is not even connected to anything capable of bringing in commercial value (there are a lot of us on this table, so hold back those tears).

However, once your name gains sufficient popularity in relation to a service or becomes attached to a brand, you can go ahead to trademark your name. Until then, keep telling people to call you Shegz or BisolaBaby and be wondering why you haven’t blown.

Disclaimer: This is not intended to serve as legal advice. Kindly contact a qualified legal professional for advice. Also, the use of names and events are purely fictional and not targeted at specific persons.

P.S. And yeah, we didn’t see Omotola travel from Lagos to Abuja but story no dey sweet without jara.

You Really shouldn’t Post that Customer Review

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Nobody:
Absolutely nobody:
Not even Jeff Bezos:
Vendors: Posts a picture on social media showing John Doe eating shamelessly, with the caption, “John Doe loves our big tray of Spaghetti Bolognese with Abuja Beans Porridge, black eyed peas and fried crayfish.”

Dear Vendor (businessperson, if vendor doesn’t sound bougie enough), I feel your plight. Buharinomics is dragging every one of us in the mud. But business must boom anyway, and you’ve heard that customer reviews is one major way to get everyone texting you for orders. You’re not wrong. In fact, customer reviews are very dope. I bought a new iPhone XS Generic for 50k one time just because the reviews were mind-blowing. So, I’m not writing to stop you from loading out those reviews on your Instagram story. God forbid that I bring bad luck to your business. Karma is real, remember?

But then, have you considered that there are intellectual property implications to those pictures of customers rocking your shoes or bags? (For those of you who post pictures of customers wearing your perfume, we recommend seeing a therapist).

Jokes apart now, there are deep intellectual property issues lurking behind customer reviews. And we hate to be the bearer of bad news but that customer who angrily barks about you posting her picture on WhatsApp without permission is in the right.

In this short post, we’ll address copyright issues surrounding customer reviews. Particularly, we’ll take a cursory look at reposting pictures of customers who “sport” your products or even reposting social media messages that highlight product satisfaction. And yes, we’ll talk about fair use – because it doesn’t apply.

Generally, it’s illegal for you to repost pictures of other people on social media without their permission. That sounds like a no-brainer, yeah? If that’s so, Bolaji Shades, why did you take a screenshot of Jumoke’s WhatsApp status to advertise the 5k Givenchy Sunglasses she bought on Twitter? “Because she bought it from me” is not an answer that excuses your liability, you know.

The Nigeria Data Protection Regulation in Rule 2(2)(a) explicitly lists consent as a requirement for processing personal data. Of course, personal data includes name, photos, or any other means by which an individual may be identified. So, before you can use my pictures for any purpose at all – including printing it and taking it to your Baba for love medicine, which I don’t mind anyways – you must obtain my permission.

Besides Rule 2(3)(1) gives the owner of a personal data the right to know the specific purpose for taking such data. Now, this is all the more important because as a businessperson, you’re bound to use that picture for advertisement and commercial purposes. And this is where it gets complex.

Being in a photograph doesn’t make you the owner by the way. The owner of the copyright in a photo is the individual who clicks on the shutter. So, if all you do is ask for portrait snapshots from Chinedu because he owns an iPhone, Chinedu has the copyright to all your pictures in this life. And by right, he is the only one entitled to reap commercial benefit off such picture.

How then do we reconcile the NDPR and Copyright Law?

That’s simple. The owner of the copyright in a picture containing others may seek for a model release to meet data processing requirements. Albeit the laws on this rule aren’t exactly clear and model release/liability waivers are sometimes voluntary in several jurisdictions.

So, as a vendor, you can see that your name doesn’t appear anywhere. Using a person’s picture as a review is invariably a form of advertisement for your business and will be taken as commercial use under the copyright law. If you ever want to go ahead with that, you must seek the permission of the owner of the copyright in the photograph.

Now, it may be stressful to start looking for Muhammed who happened to be nearby and helped Semipe take her picture just to obtain a copyright license or permission. But, when you get permission from the holder of the picture, you are fine as you may claim bona fide use of the picture.

Also, be sure to let the person know you’ll be using it for advert purposes. If they ask for a 10% royalty on every person that slides in to order based on their pictures, simply tell… see, that’s your business to settle.

Moving on, does fair use apply to using someone else’s picture to market your business?

No, not at all, absolutely not, definitely impossible. In fact, the concept of fair use and commercial usage are parallel lines that can never meet. Since fair use allows permission to use copyrighted property for non-commercial purposes, it won’t apply to your adverts.

How about private chats? Can you at least screenshot and show only the place where they said your jollof is sweet?

There’s no law expressly stopping you from posting your private communication. Keeping screenshots of chats are a mere ethical issue and even social media platforms have no laws regulating this phenomenon. However, if someone expressly requests to have their private communication taken out or their names hidden for privacy purposes, you must respect their preferences. But generally, you are free to share your personal communication with customers as a form of review.

Dear vendor, sorry businessperson, I have your best interest at heart. And because Amaka is not a celebrity doesn’t mean her privacy shouldn’t be respected. Many of these your customers have big assets in Bitcoin and they now school/work virtually. They’ll have money and time to take you court. So, why not just do the right thing and save your thrift business?

Oloture – A Breaking Point for Copyright Claims in Nigeria’s Movie Industry

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Oloture – A Breaking Point for Copyright Claims in Nigeria’s Movie Industry

If we’re keeping it a buck, the past three years have not only brought multi-million naira grossing movies. But we’ve also seen the Nigerian movie industry at its peak – in terms of directing, cast, location, and proper budget-spending. And while we still have Chidinma the Village Water Fetcher and Alani Saheedi Adigunjale in their tens and hundreds, Nollywood is making considerable progress.

Then there’s Netflix, the world’s largest movie streaming service. While Netflix has been steadily stacking up Nigeria movies, Lionheart endeared most Nigerians to the subscription service. To this writer, the film was subpar for a Netflix Original. But it’s Nigerian, so yaaayy! We did it.

And then we have adaptations—the worst tasting substance since oatmeal. Every movie industry has had its fair share of the good, the terrible, and the ban-worthy. Except for Nigerian adaptations like Saworoide and Beast of No Nation being fairly remarkable, others like Half of a Yellow Sun didn’t give that orgasmic pleasure (Hopefully, Americanah will be worse, so we can finally legislate against impulsive adaptations).

And then we have Oloture, a movie that ticks all three boxes. It’s a great movie, but Netflix won’t let us know how much it grossed. Also, I feel Oloture is an adaptation of a literary project. If you find any of the information strange, sit still, we’ll crunch the data for you.

Immediately after the release of Oloture in October 2020, Tobore Ovuorie took to Twitter to lament how Mo Abudu, Ebony Life, and the film’s crew robbed her of copyright to the story behind the movie. It was 2020. We had seen enough clout and craze throughout the year, so not many of us took it seriously. Until Tobore threatened to introduce “legal steps.”

Tobore Ovuorie

According to Tobore, she validly stated that she was the undercover journalist who took the dangerous initiative to tell the story of sexual exploitation and trafficking in Nigeria. ICYMI, Oloture tells the story of a journalist going undercover to expose human trafficking syndicates, the ills of the mafia, and the complicit status of Nigerian and foreign authorities.

To be fair, Oloture tells a verisimilitude of Tobore’s real-life story as captured within the print and online pages of Premium Times and Zam Chronicles. Who would have thought that a movie on such sensitive issues will turn out to be this controversial? Definitely not me.

Mo Abudu has come out to refute the journalist’s statements claiming that they sought the permission of Premium Times. What’s more? Ebony Life claims that the movie is a work of fiction and that the movie gave closing credits to Tobore. A letter surfaced online where the movie company promised 5% of the film’s grossing to Tobore for inspiring the work.

Mo Abudu

Before you become judge, jury, and executioner based on those facts, let’s answer some legal questions.

Was Oloture merely inspired, or was it an adaptation?

WIPO generally understands adaptation in one of its many publications to be the “modification of a work to create another work.” With copious examples like adapting a novel to make a film. In Nigeria, an adaptation “means the modification of a pre-existing work from one genre of work to another and consists in altering the work within the same genre to make it suitable for different conditions of exploitations and may also involve altering the composition of the work.” (Copyright Act, Section 39[1])

For anyone who has read Inside Nigeria’s Ruthless Human Trafficking Mafia, you’d discover the journalistic piece narrates the idea behind what we watched behind our screens for 1 hour and 46 minutes. The main idea is the same: an undercover journalist goes to uncover a sexual trafficking mafia.

However, you can’t ignore the differences – the prostitution ring subplot, Chuks, how Oloture met the “Madam” etc. This form of adaptation is known in the literary world as “loose adaptation.” The central storyline is maintained, but several subplots are inserted for plot elongation or cinematographic effects.

These minor edits are a no-brainer – we all copy and paste assignments, so we know how well this works. Without a doubt, Oloture is an adaptation. Claims that it is a work of fiction is entirely fraudulent. The closing credit given to Tobore and the striking semblance between both pieces negates any arguments of a fictional nature.

Who owns the copyright to the story?

Now, this is a big deal. There’s a lot to say, really. First off, you don’t go on adapting a work without seeking permission from its copyright holder. However, the lines between the conflicting copyright claimers (Premium Times and Tobore Ovuorie) are quite blurry.

Nonetheless, Section 9(3) of the Copyright Act has been bursting bubble since the days of Jollof spaghetti. The entire section generally places copyright in the author but makes a very compelling exception.

It states that in instances where the author of a work publishes a piece during employment (notwithstanding if it’s a contract of service or an apprenticeship) for a newspaper or magazine, the copyright belongs to the newspaper or magazine.

However, the law limits the newspaper’s copyright claim only to the extent of publishing the work in that periodical. Outside the purposes of publishing the work in the periodical, the copyright automatically belongs to the author.

In Oloture’s case, Tobore was a freelance journalist before her employment contract with Premium Times in 2013, the investigation’s onset. According to Nigerian law, the employer-employee relationship between both parties makes the contract a contract of service. And that’s precisely what the Copyright Act recognizes.

If the law is anything to go by, as it should, the copyright for publishing and reproducing the work in Premium Times periodicals and Zam Chronicles belongs to Premium Times. However, beyond the reproduction of the work in a written investigative reporting format, all copyright belongs to Tobore Ovuorie. If no agreement exists to the contrary, which is highly doubtful, Tobore was the right party to seek permission from before EbonyLife made Oloture into a movie.

Does Tobore have a claim?

I’m tempted to say as sure as the heavens are far above the earth! However, there are so several factors to consider. First, is the movie sufficiently original to be an original piece on its own? The answer to this question may well be a resounding no. The movie fits together to be merely inspired by the journalistic work. From the orgy to the final stop at the outskirts of Lagos, so many parts were significantly reproduced.

Let’s add some case law drama before I sign out. In Daly v. Palmer, the US court laid down an ordinary-observer test to detect if an adaptation infringed on its original piece. The test outlines that if an ordinary man after watching the movie can have an “unmistakable impression” that it is a copy.

Lastly, in Twentieth Century Fox Film Corp v Zee Telefilms, the court held that if the presentation was entirely new, but the theme was the same, it will not suffice for an infringement.

Sadly, these are boxes Oloture didn’t tick. It made an “unmistakable impression” that the substance of the article was copied. Moreover, copyright permissions were gotten from the wrong person, technically. All these arguments tend to favour Tobore Ovuorie.

Regardless of the monetary benefits she’s been offered; she still has a claim as her work was not duly recognized in opening and closing credits. But won’t 5 million dollars be too much to ask? Well, that’s for the court to decide. Let’s pray and fast that this isn’t a typical Nigerian threat to take legal steps – otherwise na Supreme Court of Twitter go settle am las las! !

Author: IP Research Team

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Before You Spice Your Chicken: The KFC Trade Secret

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Before You Spice Your Chicken: The KFC Trade Secret

The Viral Tweet

Just this year, Kobe and Bozeman died. We almost had WW3 in January. An asteroid was expected to hit the earth in April. COVID-19 happened, and Madagascar scammed us. We also found out that Wizkid and Davido don’t operate the Gregorian calendar. If not, they would have dropped those albums since normal people entered July. Kanye pissed on a Grammy (this is not a Burna Boy sub, please). George Floyd died. Australia and Beirut were literally on fire. And now in September, someone is claiming to have revealed “one of the world’s most valuable trade secrets.”

On September 16, 2020, at 6:15 am (WAT), a Twitter user (@amahle_faku) caused quite a stir on the microblogging platform. She posted a list of 11 spices and their measurements in retaliation for being fired by KFC South Africa. At the time of writing this piece, “valar dohaeris” has gotten over 31 thousand likes and 12 thousand retweets. I must confess, the comments section is wild. While some are more concerned about opening their own “Kalamity Fried Chicken,” others are bothered about whether the young lady has enough money for a lawsuit.

Trade secrets are, literally, confidential trade information. It is a form of IP protection that safeguards the processes, formulas, technologies, designs, or other knowledge that grants a commercial or market benefit to a person or organization. The Kentucky Fried Chicken recipe, McDonald’s Big Mac Sauce Recipe, Coca-Cola Formula, and the Google Search Algorithm are some of the world’s biggest, most protected, and most valuable trade secrets in the world. These trade secrets are, apparently, not known to the world, and they contribute to staying afloat from any competition.

To maintain a trade secret, the owner must ensure three things. First, the information must not be disclosed to the public. Second, the trade secret must have relevant commercial value. Lastly, the owner must take reasonable steps to maintain the secrecy of the information. Most trade secret holders do fulfil these requirements. Companies ensure to limit access to and knowledge of the trade secret. As a necessity, they also make employees and partners sign confidentiality agreements. These agreements include Non-disclosure agreements and Non-compete agreements. NDAs ensure that people to whom trade secrets are revealed do not reveal them to anyone. Non-compete agreements, on the other hand, prevent employees from working with a competitor during and after employment with the organization.

The KFC recipe was drawn up in 1940 by Colonel Sanders, the founder of KFC. It is popularly acclaimed to contain 11 herbs and spices. KFC stores the recipe in a vault in the company’s Kentucky office. To further protect this age-long secret, it is rumoured that only two to four top-level executives know the key to the vault, and the contents of the recipe. In fact, the production process for making the pressure-fried chickens is divided into two stages, with two companies working differently on the two phases. Over the years, there have been claims to knowledge of the recipe. In 2016, the nephew of Colonel Sanders’ second wife reportedly found a will that contained a “copy of the recipe” In the end, all of the alleged recipes have been a mere cruise.

While I can’t say if the recipe released on Twitter is true or false, I’m sure of a couple of things. KFC operates one of the world’s largest franchises. A franchise is a licensing agreement that allows a third party to produce and sell a product using the principal business’ trademarks, brand name, and proprietary knowledge. However, franchises do not ever have the entire trade secrets of any company.

During production, franchises only have access to basic ingredients which are regularly tweaked by franchises. That’s why Coca-Cola in Agege tastes different from Coca-Cola in Alabama. The ex-employee (who probably works at a South African franchise) may have just revealed generic ingredients that could have undergone some modifications by the franchise.

If the recipe turns out to be KFC’s original recipe (after all, we’ve seen 2020 offer worse things), there are two things involved. The first is, the recipe released is practically useless. Why? KFC’s recipe may not even be significantly special, but it has created one of the world’s largest franchises. Even if your “Kalamity Fried Chicken” gets to taste better, what are the odds that you can pull the same commercial reputation? Until something very significant happens, the KFC franchise can only get stronger from here on.

Secondly, if the ex-employee is bound by NDAs and non-compete agreements, she may face lawsuits for breaching them. However, NDAs and non-compete agreements are very tricky matters of law. Some agreements may be too vague for a court to enforce. Others may be validly breached in the case of wrongful termination or other wrongdoing by either party. The court may rule that some agreements are unreasonable, oppressive, and confers more power on one party than the other. If KFC decides to sue and finds itself in any one of these exceptions, the agreements are as good as worthless. If not, the ex-employee may just run bankrupt from paying damages. If ADR mechanisms are followed, the results may be quite unpredictable.

There’s still a long way to go in preserving and enforcing IP rights in many jurisdictions, but we’ll stop here for today.

P.S. Bread, beans, and dodo >>>>> KFC.

Author: Lekan Adebanjo (Head, IPTLC-UI Research Team)

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Traditional Knowledge, Bioprospecting and the rules of Convention on Biological Diversity

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Traditional Knowledge, Bioprospecting and the rules of Convention on Biological Diversity

Image Source: Language Connections

If you are born and raised in Nigeria, there is a very high tendency that you might have, at a time, boiled some herbs renowned among your people to get rid of a mild malaria or fever. Your grandmother might have that tree in front of her house whose leaves she squeezes to get the red mixture she uses to paint her feet. This use of neem leaves for the treatment of malaria, cotton tree leaves for diarrhoea, among many other indigenous knowledge of your people about the resources around them is known in the world of intellectual property as Traditional Knowledge. Traditional Knowledge has no specific definition to capture all it entails but has been defined by the World Intellectual Property Organisation as “knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity”.

Traditional knowledge is very important and has been of immense contribution to developments in areas of agriculture, science, ecology, medicine, pharmacy as well as cosmetics. In fact, an article on Journal of Natural Products titled “Natural Products as Sources of New Drugs from 1981 to 2014” by David J. Newman and Gordon M. Cragg reports that one third of all small-molecule drugs approved by the U.S. Food and Drug Administration (FDA) between 1981 and 2014 were derived from traditional knowledge.

How then, do these knowledge known to everyone within a region for several decades, become objects of intellectual property interest? It is based on the necessity of humans to continue seeking to understand the world around them and to procure solutions to problems. Firms have spent millions, and sometimes, billions in resources to explore the use of traditional knowledge in order to cater for contemporary needs through a process known as Bioprospecting.

Bioprospecting, also known as Biodiversity Prospecting, is defined by the United Nations Development Programme as “the systematic search for biochemical and genetic information in nature in order to develop commercially-valuable products for pharmaceutical, agricultural, cosmetic and other applications”. The ideals of Bioprospecting are lofty as it is aimed at making good use of natural resources in a way that is beneficial to all the parties concerned. A major challenge to bioprospecting, however, is that very minimal documentation of it exists and it can only be successfully carried out in countries that have national laws or policies regulating access to genetic resources.

What then do countries or regions from which traditional knowledge are acquired gain from bioprospecting and how do they ensure that the knowledge gotten from them is not abused? The Convention for Biological Diversity was created to attend to these worries. The CBD is described by the United Nations as “the international legal instrument for ‘the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of generic resources’”. The quote being derived verbatim from the objectives of the Convention as listed in Article 1.

Since the traditional knowledge is mostly gotten from developing countries while bioprospectors are from developed countries, there is a need to balance the relationship between the two unequal partners. Countries have created different institutions to cater to the management of their traditional knowledge such as Nigeria’s Bioresources Development and Conservation Programme (BDCP). BDCP is focused on utilising technical skills to make bioresources a viable vehicle for improved health care and sustainable development; which is essentially, using what you have to get what you need. In furtherance of its objectives, BDCP launched the Fund for integrated Rural Development and Traditional Medicine (FIRD-TM) in 1997 to manage the receipt and use of benefits from contributors to source communities in an efficient and consistent way.

In similar fashion, India, a country known for its rich cultural heritage, took a dynamic approach to the protection of traditional knowledge in 2001 when the government set up the Traditional Knowledge Digital Library (TKDL). The library serves as a repository of 1200 formulations of several systems of Indian medicine which made the government sign agreements with leading world IP offices to prevent the grant of invalid patents to bioprospectors looking to exploit these knowledge.

Interestingly, it is not only plants –which are the most common instances of traditional knowledge going through biological prospecting- that are regarded as traditional knowledge. Paintings, music, rhythms, dance, ceremonies, stories and such are regarded as traditional cultural expressions and are as jealously protected as material things, in countries where there are active laws protecting traditional knowledge. To cede to the demand of nations and in furtherance of its fact-finding mission carried out in 1999, WIPO established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC-GRTKF).

Over the years, an interrelationship among the three concepts have propelled the exploration of resources and skills from regional use to global advantage; the main crux of interest being the exploitation of the intellectual property rights involved.

Author: Aisha Yusuf

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Open Source Licenses, Copyleft and The Development of Technological Innovation

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Open Source Licenses, Copyleft and The Development of Technological Innovation

An open source license logo

“Content is available under CC BY-SA 3.0 unless otherwise noted”

If you have ever scrolled to the bottom of a Wikipedia webpage, looking for God knows what, chances are this quote may strike you as familiar. Let’s crunch the jargon down, shall we? Wikipedia is simply saying that the content provided on that particular webpage is an open initiative. This implies that absolutely anyone can access the information provided, copy or share in any format to an unlimited audience and modify the information even for commercial purposes, all at no cost. You must be thinking this is the exact opposite of copyright. Going by the rules of English language, it should be tagged copyleft (be wary of departing, beloved).

However, that’s not all there is to it. The license further stipulates that Wikipedia cannot for any reason prevent you from doing those things with the information if you fulfill two requirements: first, you must attribute that the information you have shared or modified is bound by an open license (CreativeCommons, Wikipedia’s licensor requires you to “provide a link to the license”) and second, you must share your own work (modified or not) under these same conditions.

The copyleft symbol

While CreativeCommons is not considered an exact example of open source, it gives an insight into the rules that governs the intellectual property concepts of open source licenses and copyleft (do not lose focus, copyleft is an actual word!). In simple terms, open source licenses are licenses that confers the right to use and modify a product with reduced or entirely waived license fees. Copyleft on the hand allows the free usage, sharing and modification of the copyright in a product while requiring that subsequent modifications to the product be bound by the same free and open distribution terms. Most open source licenses are usually copyleft and both concepts have proven to be exceptionally crucial to the development of software and technology by excluding the stifling nature of intellectual property in a bid to secure other benefits.

For software and technology, open source licenses reveal the source code or underlying technical information in an invention and allow free and open usage. Starting from the mid 2010s, Microsoft which had once been a major antagonist to free and open software licenses has become a major player in open source licensing. Microsoft open sourced its .NET Framework and acquired GitHub, the largest open source host among many activities taken towards the encouragement of open source license. Why would Microsoft sacrifice the humongous revenue in its copyright for a free distribution license?

The answers are not far fetched. Open source licenses encourage innovative technology and boost competitive strategies. Since authors of innovative technology can build on existing codes or technical information to develop newer and better technologies, the end result is better software and artificially intelligent technology. While developers are allowed to gain commercial benefit from modifications to source codes, several open source licenses require that the original authors be credited for their foundational work and that the modified work be released under the same terms of the open license. Invariably, the originator of the software retains its name and brand affiliations to the original work. Open source licenses also help companies on the receiving end save the costs of licenses and the cost involved in training to staff to develop new source codes for technological innovation. Asides this, open source licenses provide great security as malware can be detected easily by anyone and corrected without permission and without fear of infringement.

While open source licenses are amazing things for the development of technology, it is not without its drawbacks. Open source licenses may appear to be cheap but there are several underlying costs involved including costs of setting up and maintenance. The license also prevents claims of infringement without any prospect of indemnity. In situations where staff are not familiar with the source code in use, it can lead to extra training and usage costs. It is advised that before building your new technology on open source licenses, you weigh the benefits and drawbacks to determine which works best for you.

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SUGAR ADDICTION: TIWA SAVAGE’S SONG COVER AND THE DOCTRINE OF TRADEMARK DILUTION

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SUGAR ADDICTION: TIWA SAVAGE’S SONG COVER AND THE DOCTRINE OF TRADEMARK DILUTION

Growing up in the late 2000s, in Nigeria where we only heard songs on radio, TV, or from club mix CDs produced at Alaba, an album or song cover art rarely mattered. In fact, only hit songs from the album did, never the art. So, it was not uncommon to see an artiste with a face cap, against a red background with the album title printed in ALGERIAN font to his right, and that was all – album ti set. The creativity involved in a cover art in those years were quite minimal, compared to now.

Today, cover arts are released and marketed way before the songs or album because of its role in music distribution. From the first sale in 1997 to the creation of Napster and iTunes in 1999 and 2003 respectively, digital music sales and streaming platforms have contributed to the significance of album covers. In a world where books are judged by their covers and seeing is believing, album covers give an audience insight into the entire body of work. Their aesthetic effects are also noteworthy. And for folks who love to send screenshots of their playlist to WhatsApp statuses, album covers instill some level of pride – at least you are streaming and not pirating from 9ja-unloaded.net.

Moving away from all that background info, Tiwa Savage promised an album in May and as the queen of Nigerian music that she is, she delivered a hit single yesterday. Talmabout talk and do! However, it has become too glaring to escape our notice that Tiwa Savage has a soft spot for sugary things. From releasing an EP titled “Sugarcane”, to her cover art for the new single, “Dangerous Love”, Tiwa Savage loves sugar.

At about half-past 8pm on the 8th of July, Tiwa took to her Twitter page to announce a new profile picture which doubled as the song art for her new single. The song art was an adaptation of the popular St. Louis sugar package design. Despite the ban on the importation of foreign produced sugar brands, including St. Louis, as far back as 2013, the brand still has a remarkable popularity and remembrance among Nigerian consumers. Asides being Nigeria’s trusted cubed sugar brand for years, it was the go-to example for Mathematics teachers trying to illustrate the shape of a cube. In other news, St. Louis was so much of a known brand, it did not even have to advertise.

Now, from IP perspectives, Tiwa Savage’s cover art may be a little bit of an issue, especially if she lacks the authorization to revamp St. Louis sugar’s trade dress. A trade dress is a form of intellectual property that protects the “look and feel” of a product or put differently, the design and packaging of the product. A trade dress can be protected by registration or by virtue of long usage under common law where it can be proven that such trade dress is distinctive and non-functional. It can then safely be concluded that the St. Louis sugar trade dress consists of the visual appearance Tiwa Savage adapted into her cover art. Is this a form of infringement? Most likely. IP practitioners call it Trade dress dilution.

Trade dress dilution is a very similar concept to trademark dilution. Trademark dilution is a form of intellectual property infringement that occurs when a producer uses a popular mark to market a product entirely dissimilar from that which the mark is famous for. What dilution does is to lessen the uniqueness of a trademark, service mark, or a trade dress. Dilution can occur even if there is no competition or if the probability of confusion in the market for both products is low, or in this case, non-existent. There are two forms of dilution: tarnishment and blurring, the former being a form of dilution which tarnishes the original meaning associated with the mark while the latter involves merely using the mark for other reasons asides its original usage.

To sweeten this with few cubes of legal sugar, a Delhi High court in the case of Daimler Benz Aktiengesellschaft v. Hybo Hindustan [AIR 1994 Del 239] held that usage of the mark “Benz” on underwear will weaken the uniqueness and integrity of the mark. The court noted that this was notwithstanding the mark’s international reputation in the automobile industry was was largely unrelated to underwear.

Put into perspective, a picture of a sitting lion (or lioness, gender does not really matter) in a rounded square callout box with a blue background creates two impressions: St. Louis sugar and Dangerous Love. This will, without doubt, weaken the reputation and distinctiveness of St. Louis sugar’s pre-existing trade dress. Under common law, owners of a diluted mark can be granted an injunction to prevent the continued usage of the mark where the owners can prove that the mark is famous, distinctive, and non-functional. Without more, the St. Louis trade dress fulfils these requirements.

While there is the fair usage exception to the laws on dilution, Tiwa Savage’s usage is purely commercial and would not avail her. In all, there is a valid cause of action. What remains unknown is whether Tiwa Savage has permission to use the trade dress or whether the legal representatives of St. Louis sugar are willing to “May I” and “approach without being forward” before My Lord at the Federal High Court.

Author: Research Team

Copyright Protection for Text and Multimedia Messages over Social Media

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Copyright Protection for Text and Multimedia Messages over Social Media

The 21st Century came with a great deal of potential intellectual property issues. From patents for artificially intelligent machines to trademark licensing for transnational corporations, IP stands central to human interactions. Social media and its attendant instant messaging is also one of the best gifts of this age to mankind. According to recent statistics by DataReportal, 3.8 billion people actively use social media. That is approximately half of the world’s population and 63% of the world’s population old enough (13 years and above) to use social media. Apparently, with this multitude of people texting, tweeting and “captioning”, there cannot be a want of intellectual property concerns. Put perspective into proper perspective, are messages shared over WhatsApp, Messenger or Telegram, for example, copyright protected? Or do tweets and captions on the other hand enjoy copyright protection?

In the past centuries where personal letters were the main medium of communication, these letters enjoyed copyright protection as they fulfilled all requirements –they were intrinsically creative/original and were fixated. This rule is more complex than we imagine when social media is involved. The general rule for instant messaging is that there is a possibility of copyright protection provided the text, irrespective of how short, satisfies the presence of original content. The author of such text should normally hold the copyright but in instances where the originality of the text is conversational and dependent on response from the other party, it is proposed that copyright be jointly owned. By implication, the author(s) have the right to use, reproduce and gain commercial benefit. It is understood however that messaging occurs within apps and social media platforms and these platforms have Terms of Use or Privacy Policies which determine who owns copyright and how the content may be used.

WhatsApp, the third most used social media platform has a strict privacy policy that ensures security of conversations from third parties – including WhatsApp, and Facebook. In essence, WhatsApp determines that you own copyright to original texts you put out in a conversation or otherwise on a text status update and they will not be shared to others on WhatsApp or Facebook or third party apps and individuals. WhatsApp’s terms of service however provides that you grant them “a worldwide, non-exclusive, royalty-free, sublicensable, and transferrable license to use, reproduce, distribute, create derivative works of, display… information that upload, submit, store, send or receive on or through our services”. Your fears are allayed as this legalese simply means that you grant WhatsApp limited rights to hold your content (text and non-text) for smooth running of WhatsApp operations like delivery up of your text and multimedia messages, putting up of your profile picture etc. With regards to Intellectual Property generally, WhatsApp frowns at the infringement of their intellectual property and those of other users. Infringers risks termination of their accounts. However, the general public can use or share your original texts under the fair use doctrine or where such is used with your permission.

The same rule for text messaging applies to Instagram and Facebook. Nevertheless, it is important to know that once you sign up for Facebook and Instagram’s services, you license to them basically all your right to text and multimedia content you post publicly (non-exclusively). This means that they do not claim ownership of your content (that’s indispensably yours) but you grant them permission to use it; a very wide permission. Instagram is owned by Facebook and Facebook’s Data Use Policy enables it to share your data with other companies that Facebook owns. Again, you are solely responsible for the content you put out on these platforms. It is against their terms of use for you to post content infringing another’s IPR (copyright or trademark). You could be asked to take down the offending content once an Intellectual Property Infringement report has been made. For repeat offenders, their accounts may be suspended. There is also a provision to report Intellectual Property Infringement on WhatsApp.

Author: Ibukun Adisa-Simon

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What do Intellectual Property Laws say about my creative content on social media?

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What do Intellectual Property Laws say about my creative content on social media?



  • As long as a work is an original creation and fixed in a digital format, it already has copyright protection!

There must be some limit to the intellectual property violations perpetuated by our very own Alaba boys, right? Apparently not, as Alaba boys strike again! And this time, their victims are said to be Comedy Skit Creators. There have been reports that a couple of people are collating Comedy Skits from Social Media Platforms and selling them as CDs. Just create a mental picture of a 20-in-1 Sinzu vs. Spending skit. Clearly, no one is safe from these ridiculous infractions. But what can you do to protect yourself as a creative? Well, there is one thing: KNOW YOUR RIGHTS. And we are glad to help to help you with that.

Probably the most important subject you need to about this type of creative content on social media is ‘copyright’. So what is a copyright?

A copyright is a legal right granted by a copyright law (The Copyright Act, in Nigeria) that vests in the creator of an original work exclusive right to its use and distribution for a limited time. According to Section 1(1) of the Copyright Act, works eligible for copyright in Nigeria include: Literary works, Musical works, Artistic works, Cinematographic films, Sound recordings and Broadcasts. Note that even these works would only be protected under copyright in Nigeria if: sufficient effort is expended on the work to give it an original character and the work is fixed in a definite medium of expression. In short, copyright would not protect an idea you did not express, neither would it protect a work that is majorly outsourced from somewhere without substantial original contribution.

Furthermore, you don’t have undergo any sort of registration to gain copyright protection as long as it exists in a fixed form (a written manuscript, a picture, a video tape or any known digital or traditional medium of expression). However, it is advisable that you make use of a copyright notice (©) on your works and also deposit a copy of your work with the Nigerian copyright commission.

In addition, the rights copyright confers on authors vary in Nigeria depending on the type of work, howbeit, some rights overlap. In the case of cinematograph films, the category to which comedy skits belong, the author has the exclusive right to (or authorise someone to) make a copy of the film, cause the film to be seen in public, commercially distribute copies of the film to the public and use any part of the film’s soundtrack in another recording. These are referred to as economic rights. There are also moral rights which includes the right of the creator to be named alongside their work anywhere it is used.

Looking at these rights, it is clear that Alaba-boys geng are doing the most in terms of copyright infringement; let us not also forget our online Alaba boys, the youtube-funnyvideos-compilation-geng. As an author, if you are in a bad mood, you can decide to vent the bad energy by going after your copyright infringers. You could initiate a suit against them at a Federal High Court, where if your claim is found valid, you would be entitled to relief in forms of damages, injunction, and accounts.

Finally, you probably should not concern yourself with the expiration of your copyright protection; it is not going to happen during your lifetime. Actually, it will happen 70 years after you are dead in the case of literary, artistic and musical works and 50 years for cinematograph films, photographs, sound recordings and broadcasts. So, just know that the random Iya Tao video on Instagram or Youtube is already protected by copyright. While individuals are free to share across platforms, any form of action on those skits that creates economic benefit for anyone asides the creator or someone granted express authority (license) by the creator is copyright infringement.

You want to know if Intellectual Property protects your messages on WhatsApp? We know you do. See you in the next post.

Author: Fabarebo Victor

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IDEA CONTEST WINNING ESSAY: LEVERAGING ON INNOVATIVE TRADEMARKS TO RAISE AWARENESS FOR A GREEN FUTURE

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IDEA CONTEST WINNING ESSAY: LEVERAGING ON INNOVATIVE TRADEMARKS TO RAISE AWARENESS FOR A GREEN FUTURE

As we embark on a new decade, the impact of climate change is felt across the globe. The cases of extreme climate events are on the increase. Addressing the global climate crisis is a modern-day imperative and each of us is conferred with the responsibility to address it to build a green future. A meticulous attempt will be directed towards how society leverages innovative trademarks to raise awareness for a green future.

For the sake of clarity, definitions will be provided to the following terms; Trademark and Green Future. A trademark is a sign that individualizes the products of a given enterprise and distinguishes them from the products of its competitor while the Green Future is a global initiative directed towards achieving the use of resources from nature more sustainably and efficiently.

Innovations are important to proffer solutions towards attaining a green future, an IP (Intellectual Property) system such as the trademark can be capitalized upon to proffer solutions to help raise awareness about the product and services that could help create sustainable alternatives to our existing pollutive way of life.

One of the ways by which innovative trademarks are being leveraged upon is through the use of Green labeling. Also known as Ecolabelling, it is a recognized scheme for companies to make transparent environmental declarations about their products and services. It has been used to promote statements regarding the environmental characteristics of a product, names connoting environmental benefits, and certification of environmentally benign services such as Green seal Inc. and Green Cross Certification Co. Innovative trademarks can be used to define the market for green labels. By providing a distinctive identity for the product or service, this creates awareness about the environmental performance of products and services from a life-cycle perspective which in turn contributes to the attainment of the green future.

Equally useful to raise awareness, is the use of Collective and Certificate marks by members of a green future association. This will distinguish the goods or services of members from those of other undertakings and label products with warnings disclosing the environmental harmfulness of products. Partnerships such as the United Utilities Sustainable Catchment Management Programme whose goal is to contribute to the future iteration of sustainability can partner to acquire such rights.

Lastly, is the licensing of an innovative trademark to developed enterprises to generate investment. Trademarks can appreciate over time. The more your business repute grows, the more valuable your brand will be. Trademarks through licensing can serve to expand a product reach across countries, while simultaneously promoting the green initiative.

In conclusion, the UN Climate Change conference of 2019 predicted that a quarter of the world’s population is at risk of water supply problems, growth of oxygen-poor oceans, die-off of vegetations, and a host of other negative responses. There is no time to waste! Technological innovation is vital to maintaining our standard of living . No better time to start protecting and making good choices than now , because as some anonymous author once said “Mother nature selflessly provides all our needs, it’s time we start to care for her’’

Omotunde Masha (Winner, IPTLCUI World IP Day Idea Contest)

300 Level, Faculty of Law,

University of Ibadan.

mashaomotunde@gmail.com

+2349016743455

REFERENCES

https://www.wipo.int/ip-outreach/en/ipday/2020/green_future.html

https://www.wipo.int/edocs/pubdocs/en/wipo_pub_653.pdf

https://www.resourceefficient.eu/en/measure/green-labelling-and-certification-infrastructure-products-packaging

Harvard Journal of Law and Technology;Volume 4, Spring Issue, (1991) Using Intellectual Property To Improve Environmental Protection

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/693158/25-year-environment-plan.pdf

https://www.entrepreneur.com/article/235887 Crown Copyright; Gowers Review of Intellectual Property(2006)

https://www.skepticalscience.com/global-warming-positives-negatives.htm

https://hls.harvard.edu/sInnovativetrademarks

https://sustainabledevelopment.un.org/?menu=1300