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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

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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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Tidbits on Patents

Tidbits on Patents

Patents are the part of intellectual property law which protect inventions and innovation. They grant exclusive rights to an invention to the owner of the patent, as a means of promoting human innovation.

Applying to critical areas like medical innovations, the issue of patents is a delicate one. It has been recorded that in the last three decades, medical technologies have improved the treatment of various diseases like HIV, that were previously ‘untreatable’. As a result of the delicate nature of the subject, policy makers have set certain criteria to be met for an invention to be regarded as patentable, in order to truly protect and promote innovation.

It is generally accepted that for an invention to be patentable, firstly, it must be novel. It must be a new innovation, different from whatever might have been before it. In recent times, there has been a rise in devices using wireless charging technology. In 2015, Qualcomm Technology Inc. patented it’s innovation that eliminated an obstacle facing wireless power, as its wireless charging technology for the first time ever was able to work with metal devices.

It is also required that for an innovation to be patented it must be Inventive. Sometimes referred to as non-obvious, it means that it must be a leap forward from whatever was already in existence, being born out of creativity or research. In December 2018, Apple was granted a patent for their development of devices that could transfer power to other devices wirelessly. This was a remarkable advancement from the existing wireless charging technology. Furthermore, for an invention to be patentable, it must be Industrially Applicable, to put it simpler, it must be useful. It is necessary that every patented invention should actually have specific use, solving a particular problem. A common example of an invention that wouldn’t meet this criterion is a perpetual motion machine, and such cannot be patented because it can’t work, hence lacks utility.

On a final note, it has become necessary for there to be regulations guiding issues like patents, because for there to a constant flow of innovation in a society, then rights to the innovation must be protected.

Written By: Oluwasegun Samuel (Research Team)

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IP Valuation

IP Valuation

IP Valuation

IP Valuation right? Let’s see how it works

Due to the indispensability of intangible assets to companies, the valuation of IP assets remains quintessential. The value of IP assets which generally comprise of copyrights, trademarks, industrial designs, patents and trade secrets can be determined by direct exploitation via use, sale, transfer or license, or non-exploitation. IP assets fall under the category of intangible assets being the creation of human intellect or imagination. In the context of IP valuation, there must be the right of exclusive use and control in generating economic and financial benefits.


IP valuation refers to the process of determining the monetary or financial value of a particular IP asset. However, there are prerequisites for undertaking IP valuation some of which include distinct identification, legal transferability inter alia. It is pertinent to add here that there are such factors influencing IP valuation such as premise and standard of value, nature and strength of IP asset, time of valuation, method of IP valuation, purpose of valuation, reliable data, infringement, legal and compliance factors.
Strictu sensu, there are two effective methods of IP valuation, namely; market and income methods. While the former is premised on comparison with the actual price paid for a corresponding IP asset under comparable circumstances, the latter which is mostly used refers to the potential amount of income of an IP asset compared to its current value.
In business, IP valuation transcends the boundaries of mere estimation of intangible assets, as it influences companies’ human capital, legal and financial operations vis-à-vis Research and Development (R&D) prospects. Furthermore, IP valuation is vital to the formulation of an apt business strategy especially in a competitive market. In simple terms, companies with strong IP assets have the tendency to attract high investment and are less susceptible to bankruptcy.


According to the 2017 Intangible Asset Market Value Study, intangible assets rose in value from 17% in 1975 to 84% in 2015 while tangible assets fell from 83% in 1975 to 16% in 2015 during a 20-year span. Interestingly, IPR specialists and lawyers are beginning to specialize in the business of IP valuation, thus emphasizing the growing importance of the subject matter.

Femi Alonge

Image Credit: https://smallbiztrends.com/2016/03/what-is-intellectual-property.html

References

WIPO. Module 11 – IP Valuation. Accessed via https://www.wipo.int/export/sites/www/sme/en/documents/pdf/ip_panorama_11_learning_points.pdf.

Shubham B. and Neha R. India: What Is Intellectual Property Valuation? Accessed via http://www.mondaq.com/india/x/772158/Trademark/What+Is+Intellectual+Property+Valuation.

Ocean Tomo. Intangible Assessment Market Value Study. Accessed via https://www.oceantomo.com/intangible-asset-market-value-study/

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Power Couple: Technology and Intellectual Property (Episode 1)

So which do you prefer: Samsung or Apple? Just kidding, that’s not what we are going to be discussing today, but just for fun, here’s my opinion: an apple a day, keeps malware away.


So here’s the gist: sometime last year, nine people and two companies were indicted for selling Samsung’s curved-edged OLED display technology. Apparently, when it comes to its display technology, Samsung is like a protective dad. You can’t really blame Samsung though; it took the company six years and $134 million to develop the stolen technology. Also, in January(definitely this year), an Apple employee was also charged with stealing Apple’s self-driving project secrets (who knew Apple was into cars?).


The Samsung and Apple stories show just how important trade secrets are as IP rights especially in the tech sector. A trade secret is ‘a formula, process, device or other business information that is kept confidential to maintain an advantage over competitors’. One thing makes trade secrets particularly distinctive; unlike other IP rights, they are the invisible component of a company’s intellectual property. And often, the value they add to a company is MASSIVE; take Coca-Cola’s secret formula for example. Essentially, trade secrets are literally secrets that bring about some economic advantage to the owners.

Trade secret protection has become a viable method of sustaining certain advantages in the technology sector. They are more advantageous than patents and the likes because:

  • Unlike patents they are not limited to a certain period of time.
  • They require no registration cost, although there might certain costs in obtaining the several legal measures that make something qualify as a trade secret.
  • They do not require disclosure to even government authorities, Coca-cola has refused to divulge its secret formula even after two court orders to do so (damn! And I thought Samsung was the protective dad).

I know what you are thinking: ‘you have found the ultimate intellectual property protection’…well, not exactly, because there some major caveats:

  • Trade secrets are not enforceable like patents, thus, if another company obtains the exact content of a trade secret (through legitimate means of course), they cannot be prevented from using it or even patenting it (yeah! Checkmate).
  • Trade secrets used in a particular technology such as Samsung’s favourite display tech, can be extracted by competitors through reverse engineering and analyzing it.
  • Trade secrets derive their protection from being secrets, so the moment they stop being secrets (become accessible to the public), they stop being protected.


These caveats however have not removed the relevance of trade secret in the technology industry and it is understandable because trade secrets give unexpected blows to competitors unlike patents that give competitors insight into the developments of a company. Patents also give adequate time to strategically mitigate its impact on the competition. Patenting a particular technology would allow competitors to study the technology, manufacture their own version of it that is ‘totally different’ and does not infringe on the patent at all but trade secrets simply keep them in dark.


Without doubt, taking the route of trade secret protection is a big risk and should be used sparingly and reasonably, it however seems to be a no brainer for cutting edge technologies that could give enough economic advantage to make it worth the risk.

Victor Fabarebo

Media Team