International Air Transport Association conditions provide that an Airline may refuse to carry a passenger in the interest of public safety or if it will violate the laws of any country flown into, from or over. 

An NDA is an agreement that creates a confidential relationship between the parties whereby they agree to protect confidential and proprietary information or a trade secret.

An NDA can protect any type of information that is not generally known. However, NDAs can also contain clauses that will protect the person receiving the information so that if they lawfully obtained the information through other sources they would not be obligated to keep the information secret.

                   

In recent years, the National
Industrial Court has become the one-stop-shop for many labour disputes,
although established in the year 1976 under Section 19(1) Trade Dispute Decree
No. 7 of 1976, its status has become ever clearer since its further
codification to the Constitution as a superior court of record by virtue of the
provision of section 254A through the third
alteration act 2010 No. 3, an amendment in the Constitution of the Federal
Republic of Nigeria 1999. For many new wigs and old ones alike, commencing an
action in the National Industrial Court is not a herculean task. Flowing from
the laid down procedure contained in the “National Industrial Court of Nigeria
(Civil Procedure) Rules 2017”, fillings at the Industrial Court should be as easy
as eating cake. The following paragraphs will highlight the steps needed.

First, it is pertinent to note
that there several ways of commencing an action at the Industrial Court; a
quick peek at Order 3 Rule 1 shows
seven ways to commence an action.

The seven ways
include:

In truth, these
ways of instituting an action in the Industrial Court are tailored to the
nature of the claims and relief sought. Nevertheless, for the purpose of this
article we shall focus on the most common way, Complaint.

Order 3 Rule 2(2) of the N.I.C Rules
2017 clearly highlights that a Complaint is the best form action in
circumstances where the said matter is one in which the court has exclusive
jurisdiction as provided under section 254C par. (a)– (k) And (m) of the
Constitution of the Federal Republic 1999 (as amended) or by any act or law in
force in Nigeria.  Where a matter is set
for both interpretation and application a Complaint still remains the best
option. This is a clear distinction from an originating summons that is
adequate for just an interpretation of the relevant statute within the
jurisdiction of the NIC.  

REQUIREMENT FOR A COMPLAINT:

A Complaint takes a particular
form as seen in Form 1 in the civil procedure rules; however, it cannot be
tendered alone, as Order 3 Rule 9
shows further accompanying documents to a Complaint, they include:

WHAT MUST BE SEEN IN A COMPLAINT FORM:

From Order 3 Rule 10 par. B it
is glaring that certain information must be affixed on a complaint form. They
include:

In the same vein Order 3 Rule 10 par. C clearly states
that a complaint, in the most mandatory rhetoric, Shall:

 Conclusively, it is key to note that the
procedures for filing any kind of originating process In any court is its
“Procedural Rules and Enabling Act”. For many who are aggrieved with their
employers or former employers and want to sue, it is extremely important to
consult a lawyer. This is simply because, Law is a Lawyer’s trade. Lawyers are
trained to identify a cause of action and represent their client’s interest.  In the case of Bello Raji v. X[1]  the court mentioned that “the duties of proctors (lawyers) consist in
acquiring a thorough knowledge of the rules of their profession in applying
themselves to the affairs committed to their charge with such vigilance,
diligence and care as that their client may not be in any way surprised”.

---

Introduction

I
have brooded over the idea of penning a piece on ‘Class Actions in Nigeria’ but
always heckled by the choice of title that would captivate my target audience:
consumers (individuals and groups alike) and their lawyers – the main players.

Fortuitously,
the wave-making judgement of the Lagos High Court in Fijabi Adebo Holdings
Liited & Anor. v Nigerian bottling Company & Anor.Suit No. LD/13/2008
re-invigorated me into rethinking and re-aligning the idea to stimulate the
prevalent mood of Nigerians towards the returns embedded in class actions
especially towards seeking recompense over widespread consumer rights
infringements.

Although
the Fijabi Adebo’s case wasn’t a class action, the eye-popping testimony
of Abiodun Adebo Falana, NAFDAC’s Head of central laboratory at pages 9 and 10
of the judgement further revealed the perennially continuous, conscious and
deliberate assaults on the sensibilities of the Nigerian consumers in the
pretentious form of goods and services which may not pass quality standards tests
and/or end-users’ tolerance elsewhere in the World. Nigeria has over time,
sadly become the dumping-ground of all sorts.

Various
manufacturers’ default have been repeatedly and successfully redressed by class
actions predominantly in United States of America, Canada, Australia and other
parts of Europe where the procedure had gained widespread prominence, utility
and understanding as a veritable tool for consumer rights advocacy, protection
and compensation. Hence, it comes as no surprise, that hundreds of class
actions are filed annually in the U.S. in almost every facet of their goods and
services-delivery.

 Meaning
of class action

A
class action, simply put, is a suit filed by a party/parties for
himself/themselves and on behalf of other unknown and/or unidentified persons
who are termed “class members” against common Defendant(s) who has/have wronged
the party/parties and members of his/their class.

Description of class action

Racheal
C. Mulheron in her book “The class action in common law legal systems: a
comparative perspective” (North America, Hart Publishing, 2004) broadly
described a class action as:

“A
class action is a legal procedure which enables the claims (or part of the
claims) of a number of persons against the same defendant to be determines in
one suit. On a class action, on or more persons (the representative plaintiff)
may sue on his or her own behalf and or on behalf of a number of other persons
(the class) who have a claim to a remedy for the same or a similar alleged
wrong to that alleged by the representative plaintiff and who have claims that
share questions of law or fact in common with those of the representative
plaintiff (common issues). Only the representative plaintiff is a party to the
action. The class members are not usually identified as individual parties but
are merely described.

Origin of class action

Although,
the United States of America is widely touted as the home of class actions,
history has it that the special procedure was actually ‘imported’ into Yankee
from England were it originated in the 12th Century. This seemingly
controversial part of history was written by Raymond B. Marcin, an Emeritus
Profession of Law of the Columbus School of Law in his article “Searching for
the Origin of Class Action” published in 1974 as part of the Catholic
University of America, Washington D.C.’s scholarship repository (23, CATH U.L.
REV. 515 (1974).

In
the article, Marcin, relayed the amusing facts of the most prominent of the
earliest class actions filed in England – Brown v Vermuden 22 Eng. Rep. 796,
802 (Ch. 1676) where in Debyshire (a county in east midlands of England),
the Vicar of Worselworth (Reverend Carrier who was later replaced by Reverend
Brown) was distraught that mine owners were not paying tithes, he filed an
action against the mine owners and workers claiming entitlement to one-tenth of
the lead-ore output of the mines.

The
miners named four of their number to defend the suit but when the Vicar
judgement was given in favour of the Vicar, Mr. Vermuden (one of the miners)
intervened after the judgement and argued before the court that he ought not be
bound by the judgement as he was not a party. The Chancellor however held that
all the other mine owners and workers were bound by the outcome of the suit
even though they were not individually named in the suit.

However,
Marcin doesn’t appear standing alone on this tract of history-writing, as his
account on the origin of class actions was corroborated by Professor Stephen
Yeazell (an American Professor of Law Emeritus) in his book published as far
back as 1987 titled “From Medieval Group Litigation to the Modern Class Action”
New Haven: Yale University Press.

To a
large extent, it seems scholars agree to a large extent that class action or
its strong procedural pretences emanated from England but what seems unsettled
is the year, it erupted: while some schools of thought posited 12th century
others chose later centuries.

For
instance Marcin says the history of class action goes beyond the “pale of
chancery itself to the misty era of the Eyres of thirteenth and fourteenth
century” backing same with the fourteenth century petition of Hilgay v Wasnam
10 SELD. Society 44 (No. 41, Ch. 1399) (1896) and Discart v Otes, 30 SELD.
Society 137 (No. 158, P.C. 1309) (1914).

The Nigerian experience

Coming
back home, although, provisions on class actions have existed in the varying
rules of court especially the Lagos High Court Civil Procedure Rules as far
back as 1972 Rules (Order 13 Rule 15) the special procedure has not, to my
mind, been adequately utilized by legal practitioners.

(Reported)
Class actions in Nigeria are few and far between. In fact, the writer is aware
of only one reported Court of Appeal decision on the subject matter in the case
of Gallaher Limited & Anor. v British American Tobacco Co. &
Ors. (2015) 13 NWLR (Pt. 1476) 325 which was filed under the Federal
High Court Civil Procedure Rules 2009 against infringement of patent/trademark.

It
may safely be said here that the origin of class actions in Nigeria is more traceable
to the existence of procedural rules of court on the subject than to the filing
and/or certification of the suit itself but without prejudice to the ones filed
but not given adequate publicity and/or law reporting.

So
from the foregoing, if the origin of class action is traceable to law reporting
in Nigeria, then we may say that if recently got its first appellate judicial
upholding on the 19th day of December 2014 when the Ilorin division of the
Court of Appeal in Gallaher’ s case made express pronouncement on class
actions and when a court would made an order of appointment especially under
the Federal High Court Rules.

It
is however worthy of note that, the Nigerian Institute of Advance Legal Studies
organized a Round Table on Class Action organized in 2013 and published a
Communiqué which (arguably) states that:

 “the
first and successful class action suit was instituted in 2001 and concluded in
2010 by Mr. Lucius Nwosu SAN on behalf of Ejama-Ebubu community in Tai Eleme
Local Council of Rivers State of Nigeria which clearly shows that despite its
many advantages, paucity of legal provisions on class action litigation seem to
create a murky environment that somewhat impedes such suits in Nigeria.”

The
suit alluded to above is Shell Petroleum Dev. Co. Nig. Ltd. v Edamkue &
Ors. (2009) 14 NWLR (Pt. 1160) 1 – the propriety or otherwise of its
allusion as a class action is not the purport of this write up.

Confusion with representative actions

From
procedural point of view, the confusion of representation actions with class
actions seem the stagnating-devil of the latter as both practitioners and
judges often juxtapose the two similar but distinct procedures.

This
confusion may however be explained away on the reality that there exists no
separate substantive legislation on class actions in Nigerian where provisions
for class actions are only found (side-by-side with representative actions) in
the procedural rules of courts which often tie the procedure to the judicial
discretion unlike in other jurisdictions of the World where justiciable rights
to file class actions are guaranteed by substantive law. For instance, see the
Class Action Fairness Act 2005 of the United States; Federal Court of Australia
Act (Part IVA), Class Proceedings Act of Canada 1992.

 Class
actions are similar to representative actions in that, they both have
personally named parties representing groups but that seems the only
string-attached as far as the two procedural rules of court are concerned.

For
the purpose of clarity and convenience, the dissimilarities of the two
procedures have been outlined in the table below:

       

(Rep
Action) Provided under Order 13 Rule 12 of the Lagos High Court Civil Procedure
Rules 2009

(Class
action) Provided under Order 13 Rule 13 of the Lagos High Court Civil Procedure
Rules 2009

(Rep
Action)May be brought on any cause of action with few exceptions.

(Class
action) Restricted to interpretation of written instruments, statutes,
administration of estate, property subject to trust, customary, family or
communal property

(Rep
action) Does not require leave of court

(Class
action)Requires appointment by Judge

(Rep
action) Notice of representation is not required

(Class
action) Notice of appointment is required

(Rep
action) Interested persons are identifiable and ascertainable

(Class
action) Class members may not be identifiable and ascertainable

Representatives
are appointed or authorized by members

(Class
action( Representatives are appointed by Court

(Rep
action) Outsiders can not opt-in

Class
members can opt-in and opt-out

(Representatives
are answerable to their members.

Court
takes an active role in the event of compromise/settlement

In
representative actions, Members must have ‘same interest’

In
class actions, Members are only to have ‘interest’

Conclusion

As
much as the rules of court are not particularly elaborate on the special
procedure of class actions, we are of the respectful view that, frequent use
and insistence by lawyers, on the special procedure would open up and enrich
our case law on the subject thereby leading to fast and expedient development
of the procedure together with its good to our legal and social systems.

Sadly,
there is not one reported decision on consumers’ class action in Nigeria
despite rampant reported incidents of consumer rights violations in our country
on a daily basis. Perhaps this is traceable to the disinclination of majority
of public interest lawyers to take advantage of the procedural provisions in
the rules of court since 1972 especially under the Lagos High Court (Civil
Procedure) Rules.

If
the status quo of disinclination toward class actions changes, Consumers would
also been inspired to insist on their rights and seek redress en bloc in the
very likely event of violations by manufacturers and service providers on the
one hand while manufacturers and service providers would also respect consumer
rights by doing what is right at all times.

Ultimately,
our society, justice system and economy would be the biggest beneficiaries of
the attendant effect of such boom in the number class actions, regardless of
their success, in the dockets of our court.

By
Olumide Babalola, a Lagos-based
consumer rights lawyer.

olumidebabalolaesq@gmail.com

Source: LinkedIn 

Photo Credit – www. youtube.com 

TRADE
SECRETS

This
is the final part of the article where we will examine trade secrets. We will
also distinguish trademarks, patents and trade secrets.

Definition
of trade secrets

The Black’s
Law Dictionary defines trade secrets as “A formula, process, device, or
other business information that is kept confidential to maintain an advantage
over competitors; information — including a formula, pattern, compilation,
program, device, method, technique, or process”. Thus, any confidential
business information which provides an enterprise a competitive edge may be
considered a trade secret.

As I
referenced in the second part of this article, not all “inventions” can be
protected as patents. As a result of this, scientific theories, food recipes,
mathematical methods and commercial methods cannot be patented. You can read
more on the part two of this series here. Part one of the article can also be
read here as well.

However,
certain “inventions” which are valuable can still be protected as trade
secrets. It may be argued that strictly speaking, a trade secret is not an
intellectual property right (IPR). However, in practice it has the same legal
and commercial relevance as other IPRs and so it is dealt with in the same
manner as other IPRs.

Article
39 of the Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPS) provides for the protection of trade secrets. The TRIPS
is an international legal agreement binding on all member nations of the
World Trade Organisation (WTO). It sets out the minimum standards for the
regulation by national governments of IPRS.

The
factors that qualify confidential information as trade secrets are highlighted
by TRIPS are as follows:

a)    It
is a secret not generally known to the public;

b)   Due
to the fact that the information is not publicly disclosed, it must have
commercial value:

c)    It
is the subject of reasonable efforts by the holder to maintain its secrecy.

Unique
nature of trade secrets

Trade
secrets can be broadly classified into two:

i)    trade
secrets that protect inventions or manufacturing processes that do not meet the
patentability criteria and therefore can only be protected as trade secrets. An
example of this is a manufacturing process or customers list that cannot be
protected as a patent but is considered valuable; and

ii)     trade
secrets for inventions that fulfil the patentability criteria and could
therefore be protected by patents.

A
unique trait of trade secrets is that they are protected without registration
or any procedural formalities. Thus, unlike patents and trademarks that are
registered for a period of time, a trade secret can be protected for an
indefinite period, provided it is not disclosed to the public.

Furthermore,
unlike the United States of America that has a Uniform Trade Secrets Act, trade
secrets in Nigeria and several countries are not protected by statute but are
governed by contract, tort and other basic legal principles.

Popular
trade secrets

Some
popular trade secrets include the following:

Coca-Cola 

Rather
than patent his formula, the inventor of the Coca-Cola soda, Mr. John
Pemberton, decided to protect his recipe as a trade secret. In 1891, Asa
Candler purchased the rights to the formula from Pemberton’s estate and
founded the Coca-Cola Company. The formula for the Coca-Cola drink has
remained a trade secret ever since then. This may be considered as a good
business move because if Coca-Cola had patented the formula (which is
questionable) it may have been disclosed to the public. 

However,
the danger behind not patenting this valuable formula was seen when it was the
subject of corporate espionage as in 2006, an employee stole the recipe and
attempted selling it to Pepsi for $1.5 million. Although a fierce rival of
Coca-Cola, Pepsi immediately notified the authorities and the employee was
arrested and charged[1].

The
Google Search Algorithm 

Google
has almost become synonymous with the internet as it is the top search engine
in the world today. Google’s algorithm searches out web pages that contain
the keywords used in a search. It then assigns a rank to each page based
on several factors.

The
algorithm used by Google for its search engine remains one of the most valuable
trade secrets in the world.

Kentucky
Fried Chicken 

Kentucky
Fried Chicken (KFC) is reportedly made with a secret recipe of 11 herbs and
spices. Legend has it that the founder, Colonel Sanders, memorized the recipe
and never disclosed it to anyone when he first started out. Today, the recipe
is kept in a closely guarded safe in Kentucky. Only a few employees are aware
of the contents and they are bound by a confidentiality agreement.

To
show the extent to which this recipe is kept as a secret, a company blends the
herbs while another company mixes the spices. They are then processed and sent
to the different restaurants. KFC with this recipe has become the second
largest restaurant in the world (measured after sales) and has a revenue of
over $23bn[2].

McDonald’s
Big Mac Special Sauce 

The
McDonald’s Big Mac Special Sauce is so coveted that it was alleged in 2017 that
it had been leaked online[3].

The
trade secret was so well kept that when it got missing in the 1980s, it was
only one of the former CEOs, Mr. Fred Turner, who remembered it when he was
re-hired by the company.  

Protection
of trade secrets

Due
to the fact that trade secrets cannot be subject to public disclosure, owners
of trade secrets protect them with legal and technological procedures. If the
owner of a trade secret intends to disclose a trade secret to a third party, it
is advisable that he executes a confidentiality agreement or a
non-disclosure agreement (NDA) with the third parties as this may be the
only way he may be able to protect his trade secret and prevent the third
parties from using his invention or idea.

An
NDA is an agreement that creates a confidential relationship between the
parties whereby they agree to protect confidential and proprietary information
or a trade secret.

An
NDA can protect any type of information that is not generally known. However,
NDAs can also contain clauses that will protect the person receiving the
information so that if they lawfully obtained the information through other
sources they would not be obligated to keep the information secret. 

 Some
common issues covered under an NDA include:[4]

·        outlining
the parties to the agreement;

·        the
definition of what is confidential, i.e. the information to be held       confidential.

·        the
disclosure period – information not disclosed during the disclosure period
(e.g., one year after the date of the NDA) is not deemed confidential;

·        the
exclusions from what must be kept confidential.

·        the
term and conditions (in years) of the confidentiality, i.e. the time period of
confidentiality;

·        the
term (in years) the agreement is binding;

·        permission
to obtain ex-parte injunctive relief;

·        description
of the actions needed to be done with the confidential materials upon agreement
ending;

·        the
obligations of the recipient regarding the confidential information:

·        types
of permissible disclosure

·        the
law and jurisdiction governing the parties.

Some
additional ways owners of trade secrets can protect them include the following:

a)    Executing
non-compete agreements with the employees. This agreement will place an
obligation on the employees and prevent them from using trade secret even after
they have stopped working for the employer.

b)    Keeping
the trade secret in a safe location and granting access to a few individuals.

c)    Ensuring
that the employees are loyal and will not sell the trade secret to competitors.

Conclusion

This
three-part article has considered different intellectual property rights. In a
nutshell, we can highlight the following differences that exist among trade
secrets, trademarks and patents:

1)           Trade
secret has the advantage of not being limited in time. Patents last for 20
years and trademarks last for 7 years although they are subject to renewal. A
trade secret may therefore last indefinitely as long as it is not revealed to
the public.

2)           Trade
secrets do not need to be registered and they take immediate effect. Generally,
trademarks and patents must be registered before they can enjoy protection.

3)           Trademarks
and patents are territorial rights and so must be registered in each country
where they will be used. A trade secret is not limited by territories and
guarantees protection anywhere it is used.

4)          A
trade secret is more difficult to enforce than a patent or trademark.

5)           The
moment a trade secret is made public, anyone may have access to it and use it
at will. Patents and trademarks do not face the same disadvantage as they ought
to be disclosed to the public.

6)          A
trade secret may be registered as a patent by someone else who has access to
similar information.

7)          Trademarks
protects the mark that is used to identify a product. Patents protect the invention.
Trade secrets protect the confidential information.

I
hope this has been enlightening.

[1]Pepsi Alerted Coca-Cola to Stolen-Coke-Secrets Offer (Fox
News July 06,
2006)

[2]https://sites.mediaserver.com/mmc_m/instances/sigw4yo7/items/z3i7rq3o/assets/srvq5grd/0/Yum_2013_NY_Investors_Conference.pdf

[3]McDonald’s secret Big Mac sauce recipe allegedly leaked
online
http://www.foxnews.com/fooddrink/2017/08/25/mcdonalds-secret-big-mac-sauce-recipe-allegedly-leaked-online.html

[4] Hanson, by Mark J.; Thompson,
Joe R.; Dahlgren, Joel J. “Overview of Confidentiality Agreements”. Iowa
State University Extension and Outreach.

Davidson Oturu LL.M MCIArb

INTRODUCTION

This article aims to
examine an uncommon form of security in these climes, an intangible but yet
inestimable source of security – intellectual property (IP). According to the World Intellectual Property Organisation
(WIPO): “IP refers to creations of
the mind, such as inventions; literary and artistic works; designs; and
symbols, names and images used in commerce … IP is protected in law by, for
example, patents, copyright and trademarks, which enable people to earn
recognition or financial benefit from what they invent or create.”

THE
STATUS QUO – IS THERE ROOM FOR CHANGE?

Security over real
property is the more common form in Nigeria, but such comes with its own
inherent problems. Key amongst these is the high cost of perfection of title,
without which, most institutional lenders are reluctant to provide funding.
Embracing IP security would increase the pool of assets from which the creditor
may satisfy his claim. It would also afford the debtor an opportunity to raise
money without impairing any of the physical assets of the business.

For many IP rich but cash
constrained companies, traditional financing options may be unavailable or too
expensive. These companies own negligible tangible assets, owing their success
almost exclusively to their IP. For instance, it would be a no brainer for Fintech
companies like Interswitch, Systemspecs, OneFi etc. to leverage their IP (future
cash flows from existing IP assets, or rights to the underlying IP itself) for
financing purposes. .

SECURITIZING
IP – HOW WOULD IT WORK?

According to Professor
D.E Allan’s “Securities: Some Mysteries, Myths and Monstrosities”, (1989, pg.
135): “anything that performs the function of security must be a security.” Security
will usually be taken over IP by way of a legal mortgage, a fixed charge, or a
floating charge. In my view, taking security over IP rights uses similar
concepts as taking security over other forms of property.

Legal
Mortgage

A legal mortgage is
probably the safest form of security transaction; it would require that the IP
be assigned to the lender, with a license being granted back to the debtor.
This might pose a potential risk for the ongoing business of the debtor, and
also for the sub-licensees. The true underlying intention of the parties is not
to transfer the debtor’s IP to the lender but rather to use the IP as security
for payment of the debt.

Fixed/Floating
Charge

A fixed charge is
created over specific property of a debtor and attaches to the property from
the time of its creation. The charge restricts the rights of the debtor to deal
with the charged property, without the consent of the party in whose favour the
charge is created. A floating charge is a security over the assets of the
company for the time being, i.e. over all or some parts of its present and
future property as a going concern. The difference between fixed and floating
charges relates to the debtor’s ability to dispose of its assets. With a fixed
charge, it has a very limited ability to do so but with a floating charge, it
is free to dispose of its assets in the ordinary course of business. Title and
maintenance of the IP secured by the fixed charge will remain vested in the
debtor. It is therefore important that the security agreement obliges the
debtor not to do/omit to do anything which may put the enforceability or
validity of the IP in jeopardy (including failing to pay renewal fees, take
action against infringers or grant of licenses to third parties).

Floating charges can
be created over the same IP rights as a fixed charge, though usually a floating
charge is purported to be taken over IP rights that cannot be identified
individually such as unregistered IPs. Unregistered IPs do not often make for
good security. Section 3 Trademarks Act (TA), Cap. T13, LFN 2004 for instance provides that no person
shall be entitled to institute any proceeding to prevent, or to recover damages
for the infringement of an unregistered trademark. However, this is different
in the case of copyright as a work, once created, becomes automatically copyrighted.

KEY
CONSIDERATIONS IN USING IP AS SECURITY

A would be lender
needs to conduct proper due diligence (DD) before deciding to accept the IP(s)
as security. The DD should address some key questions, including: Is the debtor
the legal owner of the relevant IP rights (as opposed to using them under a
licence from the owner)? What is the compliance status, have all the fees being
paid in respect of the registered IP in order to maintain their registrations?
Are the IP rights subject to any pre-existing mortgages or charges or any other
claims of any kind?

If subject to
expiration (like patents and trademarks), is the unexpired term (including
renewals if applicable), sufficient for the security transaction? IP rights in
themselves are never in perpetuity though some are subject to renewal. Section
23 TA, for instance provides that the registration of a trademark shall
be for a period of seven years, but may be renewed from time to time. Patents,
on the other hand have a limited term. Section 7 Patents and Design Act, Cap. P2,
LFN 2004 provides that the term of a patent shall be twenty years from
the filing date of the application. Schedule 1, Copyright Act, Cap. C28 LFN 2004
provides that for literary, musical or artistic works other than photographs,
the copyright subsists from the date of creation and expires seventy years after
the end of the year in which the author dies.

There would also have
to be a systematic procedure as to which, the valuation of the IP -perhaps the
most important factor in using IP as security – would be conducted. Giving a
wrong valuation (over/ undervaluation) to an IP can have negative impacts on
the whole arrangement. Some of the key considerations in valuing an IP are
whether the IP is registered and in which countries; the competition threshold
(alternatives); how much income the IP has generated within the past few years,
the size and growth expectations of the markets for the inventions, etc.

CHALLENGES
IN SECURITIZATION OF IP

One of the key
challenges is IP valuation. Is it value in the near, medium and long term?  What is the competitive landscape like, could
potential rival technologies emasculate the referenced IP? Another downside of
using IP as security collateral, particularly for trademarks, is that they are
often business-dependent, so that if a business fails, the value of the
trademarks that business uses may fall drastically.

There is also the
challenge of obsolescence or the current IP owner not fully developing the
potentials of its IP via updates. As new offerings enter the market, the value
of intellectual property associated with earlier products declines. This can
easily illustrated with the smart phone market where the leaders – Apple,
Samsung, etc. keep churning out products. Eastman Kodak paid dearly for
ignoring the potentials of digital photography, which it invented, ceding huge
market share and leadership to late entrants. This long-term trend can show why
the value of a patent associated with computer technology can significantly
decrease in a few years.

IS
NIGERIA LATE TO THE PARTY? – FOREIGN CONSIDERATIONS

IP asset-backed
securitizations are most common in the film and music industries. Some high
profile examples include the securitized royalty streams on the copyrights
owned by famous musicians. For example, in 1997, David Bowie issued 10-year
asset-backed bonds on the basis of future royalties on publishing rights and
master recordings from 25 pre-recorded albums, and raised US$55 million.

In May 2017, Kenyan
President Uhuru Kenyatta signed into law a Bill allowing borrowers to use
intellectual property to secure commercial loans in a move aimed at boosting
access to credit. Kenya’s Movable Property Security Rights Act, 2017
paves the way for the formation of a centralised electronic registry for mobile
assets that financial institutions can use to verify the security offered. Nigeria
has a similar Act in the Secured Transactions in Movable Assets (STMA)
Act 2017 however it is restricted to the use of movable assets to
secure financing.

In June 2016,
Singaporean shoe maker Masai borrowed
money using its IP as collateral, in the first loan of its kind to be approved
in Singapore. The country’s IP Financing
Scheme was introduced in 2014 to help companies use their IP to raise
capital. Under the Scheme, IP valuers approved by the Intellectual Property Office of Singapore determine the value of the
patent, and the Singaporean government partially underwrites the loans which
are granted by a financial institutions.

CONCLUSION

Securitizing IP in
Nigeria as a financing mode will remain a theoretical concept unless we make an
intentional towards actualizing it. As at date, there is no mention of creating
a charge over an IP on the website of the Trademarks, Patents and Designs
Registry – the office that should ‘theoretically’ receive charges that have
been created over IP. Lodging of the lender’s interest in the IP at the Patent
Office should protect it from third parties who either later acquire an
interest or who have earlier unrecorded interests in the IP in question.

The input of the
judiciary would also be necessary if we are to fully leverage securitization of
IP. Due to its intangible nature, its infringement may go on without the
knowledge of the alleged owner – but who upon becoming aware should be able to
bring a claim, and which should be decided timeously. Thus, the timely and
adequate intervention by our courts can protect the use of IP as security.
Where awareness is created by the judiciary being swift to act in cases of IP
breach, more people would begin to see the potential for securitization in IP.

As a country, we
should make all necessary efforts in order to fully tap into the IP
securitization for the progress of the economy.

Franklin
Okeke

LeLaw
Barristers & Solicitors

‘Frank
is a corporate commercial lawyer with a deep bias for intellectual property and
real estate. His analytical mind and keen eye for details ensures that all his
clients are ably represented with bespoke solutions tailored to their specific
needs. He practices with LeLaw Barristers and Solicitors in the corporate
commercial department.’

 Photo Credit – www.naij.ng

The attention of the office of the Senator
Representing the good and hardworking people of Lagos East Senatorial District
has this morning 22^ND February, 2018 been drawn to a news item
published on an online news blog known as “Society Now” and captioned “AGAIN
TALKS GBENGA ASHAFA INTERESTED IN BECOMING NEXT LAGOS GOV FLOAT ABOUT TOWN”.

The Distinguished Senator Gbenga B. Ashafa hereby
uses this medium to reiterate his support for the government of his Excellency,
Governor Akinwunmi Ambode and to state that he is firmly focussed on his
assignment as the Senator representing the people of Lagos East Senatorial
District in the upper chamber of the Legislature. Senator Ashafa is equally
committed to supporting the brilliant strides of the incumbent Governor of Lagos
State and would continue to support him accordingly.

It is pertinent to state at this juncture that
only last week, on Friday 16^th February, 2018, Senator Gbenga Ashafa
used the medium of his address at the closing ceremony of the Entrepreneurship
Training and Skill Acquisition program for constituents of Lagos East by his
office in conjunction with SMEDAN to further publicly drum up support for the
government of Governor Akinwunmi Ambode, noting the good works of the governor
particularly in the aspect of youth empowerment.

You would also recall that Distinguished Senator
Gbenga Ashafa equally played a very vital role in rallying the Lagos East
General Assembly of the All Progressives Congress to ensure that a vote of
confidence was passed on government of His Excellency, Governor Akinwunmi
Ambode during the General Assembly which held in Ikorodu on 4^th of
December, 2017 under the leadership of Otunba Bushura Alebiosu (BUSH). At the
General Assembly, Ashafa was quoted to have hailed the exemplary leadership of
the Governor and also that the present developmental projects in the state
should be allowed to continue, describing Ambode as the most effective Governor
in Nigeria.

It has therefore come to the Distinguished Senator as a surprise that any news
medium would contemplate the possibility of him contesting against the
candidacy of Governor Akinwunmi Ambode in the 2019 general elections.

Senator Ashafa hereby urges the good people of
Lagos East and indeed all Lagosians to continue supporting the Government of
Governor Akinwunmi Ambode and also wishes to make it abundantly clear that he
is currently focused on his assignment as the Senator representing Lagos East
Senatorial District in the National Assembly.

Legal Expert, Paul Usoro who was in Maiduguri yesterday, charged Stakeholders and the general public to show their support for the Internally Displaced Persons.  

In a statement posted on his social media platform, he said that his visit to Maiduguri has given him an opportunity to reflect on the damage that caused by the unrest in the North East. He urged the general public to remember the plight of the affected people and lend a helping hand.

HIs statement below,

The importance of peace and stability is oftentimes taken for granted until it is disrupted. My visit to Maiduguri on 21 February 2018 for the Law Week of the Nigerian Bar Association, Borno State offered me an opportunity to reflect together with colleagues on the collateral damages that have been caused by the unrest in the North East for a number of years. I was and remain happy to learn that the Maiduguri Bar thought it fit and proper to schedule a visit by its teeming members to the IDP Camp in Maiduguri. Such visit is bound to give hope to the hopeless and encourage some of our brothers and sisters who hitherto lived in the peace and comfort of their homes but suddenly find themselves having to take succour in shelters due to no fault of theirs. I congratulate the Maiduguri Bar for this heroic initiative.  

The plight of the IDPs call for a deeper reflection by all of us Nigerians and not the least, all of us Lawyers about the state of our dear country, Nigeria. First, the importance of peace cannot be overemphasized so all of us lawyers must learn to preach and live in peace anywhere we find ourselves. We must also in living up to our status as social engineers advise governments across boards on the need to have peace-promoting legislations. Again, we as lawyers cannot shy away from the needs of the IDP Camps and that means we must all to the extent of our capabilities, no matter how little, learn to render our help to our brothers and sisters in need. Remember, kindness to one is kindness to all. 

We must of necessity remember the plight of the young ones who are the most affected by the present situation as their future needs to be secured and assured by constantly reaching out to them so as to prevent the despair of the present from leading them into vices that are associated with exploitation of the vulnerable and thereby robbing them of the joy of the years to come. These little ones need our support as best as we can offer and I urge us all to see them as our common responsibility

Paul Usoro SAN, who is currently in Maiduguri for the Law week event hosted by the NBA Maiduguri Branch paid a courtesy visit to the Attorney General and Commissioner for Justice of Borno State.

Moved by the plight of the IDPs, Usoro donated relief materials to the internally displaced persons through the Attorney General.

Usoro who started his career in the North (Kaduna) specifically remarked that Maiduguri is dear to him and his family as he used to drive from Kaduna to Maiduguri to visit his wife, then his fiancé. “It is so sad we are experiencing this state of affairs in a city that was so peaceful but our hearts are with you. We hope that we can together influence things so Maiduguri can be what it used to be. 

“As lawyers, we have a responsibility to help in building the society and coming together as an association is a good thing. If there is rot in an association, it starts from the head. We must have a strong association that can speak to ‘power’ and encourage ‘power’ to fulfill its commitment to the people”.

The AG/CJ responded by thanking Paul Usoro immensely for his kindness and thoughtfulness. “The gifts you have provided will go a long way to alleviate the sufferings of so many internally displaced persons in Borno State. We are privileged to have the learned Silk – Mr. Paul Usoro, SAN, in Borno State today. The name Paul Usoro is known to virtually all practicing lawyer in Nigeria. We are proud to learn from Mr. Usoro’s experience and exemplary leadership qualities”.

Also in attendance at the meeting were members of Usoro’s delegation including Alh. Tajudden Oladoja – Barnawa Branch, Aminu Sani Gadanya – Chairman, Kano Branch, Lekan Thanni – past Secretary, Ibadan Branch, Kennedy Onwusi – Enugu Branch,  Karshima David –  Chairman, Pankshin Branch, Aguda Ememobong –  Secretary, Uyo Branch.