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Before You Spice Your Chicken: The KFC Trade Secret

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

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

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

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

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?

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

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

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

MESSI v RONALDO: THROUGH AN IP LENS

MESSI v RONALDO: THROUGH AN IP LENS

Source: Getty

It’s been so long the world watched a live football match from the top European Leagues so much that people don’t sound like themselves anymore. Who would have thought that “abstinence” from football can give withdrawal symptoms? If you don’t mind, let us bring back some football vibes – that’s all we are left with too.

Football is a powerful game and we quite agree. It’s the biggest sport in the world; a four billion fan base is no joke, you know. And if you ask any true football fan, this game is currently ruled by two men, who for several years have sparked debates as to who the true king is. You guessed right, Messi v Ronaldo (you can tell us your GOAT in the comment section).

At this point, we will discuss some points at which football and IP intersect, while comparing these two on those points, with the aim of helping to discern who is truly the G.O.A.T IP-wise. You ready? Then let’s kick-off this match-up, with a little IP concept called Image Rights

WHAT ARE IMAGE RIGHTS?

Image rights refers to the rights of certain bodies or organizations, to use the elements which come to constitute the likeness of a particular person for commercial purposes. That is, it is the right to use a player’s image, voice, catchphrase, and other things associated with that player’s likeness, for commercial gain. This is often done through endorsement, or sponsorship contracts. Image rights represent in this modern age of football, a huge source of income, especially for top footballers, as various companies will be looking to exploit the fan base of people like Ronaldo and Messi, to market their products.

VERSUS: when it comes to number of companies tapping into his image rights, Lionel Messi is currently said to have about 9 brands on his back, with a notable lifetime contract with Adidas, and other sponsorship deals with brands like Pepsi, Gatorade, MasterCard, and so on. However, in this round, the clear winner with a knock-out is Cristiano Ronaldo, with a shocking number of 31 endorsement deals, with a number of companies like Tag Heuer, Armani, his own life contract with Nike, Dolce and Gabbana e.t.c. This makes Ronaldo the most marketable football player on the planet.

TYPES OF IMAGE RIGHTS

Image rights as it relates to footballers comes in two forms. The first, Personal or Individual capacity; in which contracts are made with a player in his individual capacity alone. Hence, any representations by an endorsing company made will not incorporate the elements of his club or team in their marketing. Second is Club capacity; where contracts and advertisements made will be made through the player’s club and will involve the club’s identity in it, e.g Chivita CO’s advert involving Paul Pogba, Juan Mata and De Gea, all players of Manchester United.

VERSUS: Sometimes, there can be clashes in the negotiation between the two different forms. For instance, Cristiano Ronaldo holds a lifetime agreement with Nike, however, both his former and present clubs, that is Real Madrid and Juventus, are both sponsored by Adidas. Lionel Messi on the other hand, also holds a lifetime contract with Adidas, but his club Barcelona, has been sponsored by Nike for the past 20 years. Such arrangements are potentially harmful to the clubs considering that their respective sponsors are competitors.

HOW ARE THEY STRUCTURED

Image rights could be declared ordinarily as part of a player’s earnings. However, they will be taxed at a normal rate along with the rest of the person’s income, and in case you didn’t know, the tax rate for millionaire footballers is quite high; a whooping 45%. So what do players do to escape this tax encumbrance? They enter deals with IRCs. IRCs or Image Right Companies are companies created by footballers to which their rights are transferred to. The company takes ownership of the player’s rights, and exploit it commercially on his behalf. The result; the company which now holds the rights is taxed instead of the player, and they are taxed just corporation tax; at a mere 19%.

VERUS: In 2015, Cristiano Ronaldo sold his image rights to Singaporean billionaire, Peter Lim, who owns Mint Media to serve as an IRC for him. However, this author has found no evidence of Lionel Messi setting up an IRC for himself. Hence, this round awards points to Ronaldo for going a step further in protecting his IP.

TAX TROUBLES

While for footballers, IRCs represent a nice way to convert their earnings to dividends which are taxed at a lower rate, for others, especially the authorities, they simply represent a lacuna in the law which allow evasion of tax. However, problems arise, when players don’t even declare their income at all

VERSUS: Lionel Messi has, rather disappointingly been convicted twice for tax fraud. In 2016, he was convicted of tax fraud and sentenced to a 21 month imprisonment term, after discovering his evasion of over €4 million in tax. Ronaldo on his own end is no saint, as he had to pay a €19 million settlement fine to the Spain Finance ministry, after being found guilty of evading over €14.7 million in tax on Image Rights earnings. There will be no winners in this round, as this author will not award points to law breakers.

TRADEMARK PROTECTION

Footballers are very popular people. As such, a lot of products are sold in their name, and they might seek to protect their brand, hence the importance of getting their brand trademarked.

VERSUS: When it comes to Trademark protection, Cristiano Ronaldo doesn’t seem to be doing too badly, with 47 registered marks globally (for marks using his name or the phrase CR7). However, the winner of this round without much argument, goes to Messi, who leads the game with 76 active registrations, for registrations using his name, logo, signature, and stunningly, he holds a trademark for his son.

CONCLUSION

The final whistle has been blown, and the results are in. When it comes to Trademark protection, Lionel Messi leads every player in the world, and making over 27 million Euros annually from his endorsements is not bad. Ronaldo on the other hand, may not be the leading trademark protecting player, but when it comes to the worth of his Image Rights, makes over 47 million Euros, almost double that of Messi, plus he has an Image Right Company. And so the winner is;….. completely up to you of course. It would perhaps amount to injustice for this author, to project one player as better than another, when both of them have an IP game almost as spectacular as their game on the pitch.

Author: Chiziterem Ogbonna

Fahion Law and IP: The Nexus

Fahion Law and IP: The Nexus

In a multi-cultural society like Nigeria, and in fact, given the effects of globalization and the spread of pop culture, fashion has amassed a considerable level of interest among individuals. Fashion is a form of art which is expressed in clothing, accessories, hairstyle, footwear and cosmetics. The high level of creativity and sophistication invested into these art forms reasonably necessitates some form of protection. A balance has to be made between fashion law, in its strict sense and Intellectual property of fashion. While fashion law may be as broad as encompassing tax, employment, consumer protection and safety issues, Intellectual property does not delve in that far. Does fashion law encapsulate IP or are they distinct? Quite recently, Annie Oti joined us at the Intellectual Property and Technology Law Club to discuss this.

Bio of Speaker

Annie Oti is a budding fashion lawyer and entrepreneur. She graduated from Obafemi Awolowo University in 2018. She is the founder and CEO of the Africa Fashion law, a platform solely dedicated in establishing a connection between fashion and law. She was once the creative director and CEO of House of Annie Oti, a business that thrived well under her administration. She also once volunteered at the prestigious event, Fashion Finest Africa, theatre of Fashion in 2018. Her vast experience and vivid interest in fashion law makes her a force to be reckoned with in fashion law.

Transcript of Webinar

Fashion law, also known as apparel law, is an emerging legal specialty that encompasses issues surrounding the life of a garment from conception to brand protection. Fashion law clients include designers, fashion houses, distributors, manufacturers, modeling agencies, retailers, and photographers.

Fashion lawyers perform a broad range of duties from drafting and negotiating contracts to addressing and litigating trademark, copyright, and other intellectual property issues. They’re in charge of forming and dissolving business entities and advising on branding development and protection.

The focus is on Fashion Law and Intellectual Property Law. The law in Nigeria is quite limited when it comes to protecting the creativity of designs in the Nigerian Fashion Industry plus a lot of creatives undermine the value of Intellectual property when it comes to their businesses.

Ignoring the fact that all businesses need to be strategic in order to guarantee longevity and sustainability, engaging legal representation will improve a business owner’s ability to understand different legal and business issues. Fashion is a global business and IP rights extend into the international trading system through various international treaties.

It is vital for fashion enterprises to obtain sound legal advice at an early stage in order to appropriately protect their creativity through IP rights, and be able to realize their commercial potential. The first hurdle in protecting fashion designs in Nigeria is not a simple task. In protecting a design, Intellectual property law comes in.

The areas of IP which caters for the creativity in the fashion industry are:

Copyright and Design Laws

Copyright protection is typically sought to protect the two-dimensional aspects of clothing design, while design law may protect the three-dimensional design and shape of the piece. However, under both Nigeria’s copyright and design laws, designers have encountered significant difficulty protecting their works.

Section 1(3) of Nigeria’s Copyright Act states: “An artistic work shall not be eligible for copyright, if at the time when the work is made, it is intended by the author to be used as a model or pattern to be multiplied by any industrial process.” As a result, protection under the Nigerian Copyright Act is not available where a designer intends to mass produce his or her garments.

Alternatively, Nigerian designers may seek protection by obtaining a design patent, which permits mass production, but is also difficult to secure. Designers who choose this route are often impeded by the lengthy processing time required to obtain the patent, the fees associated with the application and registration process, and the burden to prove that their designs are entirely “new,” varying significantly from each prior design in every country across the world. Each of these obstacles, particularly the last, may preclude protection under Nigeria’s Patents and Design Act: “Any anticipation of the design anywhere in the world, by any means whatsoever before the date of the application for registration of the relevant priority date destroys novelty.”

This high standard for proving novelty is often difficult to meet, especially for designers known for their particular aesthetic, as displayed in their prior works, and because fashion designs are often derivative of prior designs.

With regards to questions as to protecting fashion designs through copyright, it depends on what is meant by “fashion designs.” A fashion design could connote a number of things. It could mean sketches. It could mean a signature color, like Louboutin’s famous red-bottoms. It could mean the way fabric and other design elements are cut and pieced together. It could mean the graphic designs that appear on clothing. It could mean a design imprinted into fabric.

So if Copyright isn’t effective, what aspect of Intellectual Property Law can be effective in protecting fashion designs?

Trademark

A trademark can add great value whether for a small Scale fashion outlets or a global fashion house. They all value the brand equity they have built over the years through customer loyalty. These organisations develop st rong affinity with their customers through their brand names which are protected through registration as trademarks.

A trademark is a representative of the qualities (both tangible and intangible), values, and attributes that a designer infuses into its products. Trademarks are really most valuable for well-known, recognizable brands and can be an effective means of protecting creativity in the fashion industry.

Research has shown that despite the numerous benefits of trademarking and branding, over 80% of Small and Medium Scale Enterprises (SMEs) still fail to register their trademark. By failing to register their brands, these businesses are not only damaging their brands and reputation, they also put their business at great risk.

Trademarks can take many forms but are indicators to consumers that a certain product originates from a specific source. Brand names and slogans are typical trademarks.

There are a number of advantages associated with registering a trademark in respect of a fashion brand or business, including:

1. Registered trademarks allow you to easily differentiate your products from competitors, through use of the ™ or ® symbol. This is particularly beneficial in the highly competitive fashion industry, which is centred on brand names and product recognition.

2. A holder of a registered trademark has the right to sell their trademark or licence its use to others.

3. Registered trademarks are a solid legal basis on which to prevent others from imitating your brand. This is advisable, as imitators have the potential to damage reputation and diminish sales.

The application of Intellectual Property Law is very important in the fashion industry and in every business. If the intellectual property is not protected, the owners risk losing:

• Branding Establishing a strong brand is pivotal to business success. Protecting that brand (through trademark) is equally important. The name of your company and its logo are part of the branding that sets your business apart. Elements of your brand, from your company name to your logo can be subsumed and eroded. This can damage perceptions in the market of your quality, products, and reputation.

• Products Unique investments that have been made in developing designs may be compromised; only through proper protection through design laws etc. can one ensure that control and market the products developed.

•Ideas and thought leadership Protecting original contributions to the thinking around an industry can be an important step to establishing the company as a market leader.

As such, there is no doubt that, in a business, intellectual property is everywhere. Protecting your intellectual property rights is protecting your business, so you must claim your intellectual property rights before it’s too late.

Thank you all so much for the opportunity.

Q & A Session

Please can you explain the concept of patent and novelty?

In the context above, design patents are what we know as industrial designs and for an industrial design to be registered, a major feature is that it is new.

What are the deficiencies of the current legal framework for the protection of fashion designs with particular reference to Nigeria?

There are a lot of issues related to the legal frame work, first of, the Nigerian Fashion industry lacks an adequate structure, which a number of organisations are currently working on another issue is related to our laws, they need to be reviewed especially the Trademark Act.

The deficiencies are quite numerous and I won’t be able to highlight everything in the next 1hour

You know that thing that we do, taking pictures of designs and giving it to our tailors to sew. I want to know if it’s an infringement of an IP right

First off, we need to consider the features of trademark, industrial design laws. What makes a product/design protectable?

In 2019, Deola Saoge put out a notice before releasing her collection, protecting her designs. Once protected, taking it to a tailor to sew a copy of the design, which would most likely be impossible because of the unique nature of the product, would result to an infringement. So when a design has been put out in the public domain without protection, the protection available to such design will be limited

Are there law firms in Nigeria with strong Fashion law department?

There are law firms in Nigeria with strong entertainment law departments and these departments cater for fashion law related issues e there law firms in Nigeria with strong Fashion law department? There are law firms in Nigeria with strong entertainment law departments and these departments cater for fashion law related issues

Extended Reality Technology; Sit in and Stay out

Extended Reality Technology; Sit in and Stay out

Source: Forbes

Extended reality is an advanced technological development which was introduced by Paul Milgram. The basic concept of this technology is to enable people to experience the physical and virtual environment through immersion rather than observation. That is, through technology people are immersed into a world which they are in actual fact absent from. Extended reality technology is quite advanced and is gaining grounds in aspects such as real estate, entertainment, marketing, etc. This technology brings to life the reality of the whole world being one small whole and through the power of digital technology, there is the possibility of meeting up with appointments around the world from the comfort of your home.

In the light of modern day reality, and at such a time as this when almost the whole world is on an automatic shut down due to the Corona virus pandemic, it would be impossible for one took away from the goodness of extended reality technology. While its inculcation may prove to be a strain on the budget of any nation (Nigeria especially), the benefits and interests definitely outweigh whatever cost may be incurred.

Let’s take our educational system for example; one thing is it’s a great medium for all students who get to sit at home to still get the feel of school and be immersed in just the right environment for learning from the comfort of home. Imagine being connected with all your buddies from school and learning like all is fine with the world around you, with no fear whatsoever that the person right next to you may sneeze the next moment. Now that’s something the government of any nation ought to give a thought to; immersed class sessions!

Moving on, though the global market for extended reality technology is still in its infant stage, ER technology is like the future on your finger tips. Teleporting and transacting around the world from the comfort of your home. This technology development holds a promising future for businesses most especially real estate, as a prospective buyer need not be present to examine property but can do so with ease and from the comfort of wherever they are around the world. Though the initial implementation costs may be huge, its foreseeable benefits are tremendous and it very well yields faster and timely productivity.

In conclusion, extended reality technology promises the world a future where all can truly be one; fit together in a tiny globe of technology; and at such times as we are in, it would not hurt for top world investors to give it a trial.

Author: Sandra Attoh