AT & T /Warner Merger- A Dangerous Precedent For Competition/Anti-Trust Law In Nigeria | Eseoghene Palmer Esq

AT & T /Warner Merger- A Dangerous Precedent For Competition/Anti-Trust Law In Nigeria | Eseoghene Palmer Esq


On June 2, 2018. It was announced that the federal court has approved of the 85-billion-dollar merger and acquisition deal between America’s telecommunications giant ‘AT&T” and “TIME WARNER” a formidable media behemoth based in the USA.  How big of a deal this is cannot be overstated. Already, AT&T boast of subsidiaries such as DirectTV, Appnexus, Leapwireless, Pacificbell, Southwesternbell and so many more, TIME WARNER on the other hand as media kings have CNN, Cartoon Network, Adult Swim, HBO, TNT, Hulu, Warner Bros, New Line cinema amongst a myriad of other companies in just their warner media section.


It is important to note that the two companies are not competitors in the service delivery sense, with AT&T being a wireless network provider/telecoms company and Time-Warner, primarily a media company, such a merger, although, vertical in nature still leaves a lot to worry about. It is no wonder the Department of Justice (DOJ) challenged the merger in the first place. According to Forbes, AT&T announced in 2016, that it will acquire Time Warner in a stock and cash deal valued at $85.4 billion, integrating its vast distribution network, which spans wireless and broadband services and pay TV, with Time Warner’s media asset. Now, AT&T has been increasingly interested in the media and content businesses as growth in its core wireless business has slowed, while its landline businesses are in steady decline. In 2015, the firm closed a $49 billion deal to buy DirecTV in a move that made it America’s largest pay TV operator. With the deal came over 25 million customers and a swath of highly valuable content agreements. The carrier has been focusing on widening its distribution footprint, with plans later to launch its own streaming TV service targeting cord cutters, “DirecTV Now”. By acquiring Time Warner, AT&T would own high-quality original content, besides gaining some bargaining leverage in acquiring content from other companies for distribution. Rising content costs are becoming an issue for pay TV players, as customers opt for smaller TV bundles or switch to web-based streaming services altogether. Moreover, the firm expects $1 billion in annual run rate cost synergies within three years of the deal closing, driven primarily by corporate and procurement expenditures.

The DOJ argued that the merger would run afoul of the anti-trust law or competition law. However, the court was not satisfied with the arguments of the DOJ in stating that the approval would create some kind of monopoly or pose a threat to the free market economy, especially in light of the fact that the same is a vertical merger and not a horizontal one, that is two firms producing different products and services but coming together for strategic alliances.

Nevertheless, I find reason with the DOJ in their counter, for one, in the absence of any information as to whether an MOU was reached to prevent Warner Media from unethically favoring AT&T in content usage, the cord cutting act by AT&T by expanding into online streaming services and basically owning considerable media content on pay TV, all in the name of providing better and more cost effective products, is definitely going to hurt other ‘not so big companies’ who can only offer TV subscription services, we must  bear in mind that AT&T is an already large and powerful company, hence, having acquired media content rights from TIME-WARNER by virtue of this merger, media contents which a sizeable amount of Americans and the world in general are inadvertently glued to, we are looking at the most subtle  media take over yet. 

In Nigeria, the Securities and Exchange Commission (SEC) is a commission established by the National Assembly through the promulgated 1nvestment and Securities Act 2007, it is charged with the roles of regulating the capital market and granting approval to company restructuring modes, such merger & acquisitions, takeover bids and so on. It must be established that if the “AT&T deal” was held in Nigeria, legally speaking, it would have flown freely and without any challenge from any DOJ. The reason being that, although the Telecommunications sector is a reasonably regulated sector in Nigeria, there appears to be little or no attention to anti-trust issues. The SEC also does not have the yardstick for determining, truly, as to whether a transaction would substantially restrain competition or create a monopoly. 

Thankfully, The Federal Competition and Consumer Protection Bill was passed, at the tail end of 2017, by the National Assembly. Although, awaiting consent from the President, this legislation attempts to solve the grey areas surrounding company restructuring and consumer policy. According to the Guardian newspaper, “When it receives the President’s assent and becomes law, it will repeal the Consumer Protection Act and transfer all the staff and assets of the Consumer Protection Council to the newly created Federal Competition and Consumer Protection Commission”. “To avoid confusion with the likes of the National Communications Commission, the National Electrical Regulatory Commission, the Security & Exchanges Commission (SEC) or the Corporate Affairs Commission (CAC) in matters affecting competition, the Federal Competition Commission is given supremacy over the existing government agencies. However, it may designate certain sectors as “regulated industries” and cede regulation to their supervising government agencies”. 

In all, it is important for the regulatory agency concerned with anti-trust/ competition laws to look beyond the structure of mergers and standardize the economic power that would be result from such marriage. The AT&T merger is no doubt a huge win for the AT&T company, whether or not we like it, the world would be paying AT&T from now on for Television, thus, making it too powerful for competition, a tragedy in a free market economy.
Eseoghene Palmer Esq is an associate with Adedunmade Onibokun & Co. He has cultivated interest in Corporate Law, Property, Intellectual Property, Sports, Entertainment law and Mediation
Photo Credit – www.variety.com 
Provisions of the Executive Order (No. 6) On The Preservation Of Suspicious Assets | Adedunmade Onibokun

Provisions of the Executive Order (No. 6) On The Preservation Of Suspicious Assets | Adedunmade Onibokun

On
Thursday, 5th July, 2018, President Buhari signed the Executive
Order On The Preservation Of Suspicious Assets Connected With Corruption And
Other Relevant Offences. The Executive Order which is a new tool in the fight
against corruption in Nigeria seeks to inter alia restrict dealings in
suspicious assets, subject to investigation or inquiry bordering on corruption
in order to preserve such assets from dissipation, and to deprive alleged
criminals of the proceeds of their illicit activities which can otherwise be employed
to allure, pervert and/or intimidate the investigative and judicial processes.

The
Executive Order, in its Section 5, defines the term asset as including funds,
liquid assets, receivables, stocks, bonds, insurance policies, shares in listed
and unlisted companies and all manner of fixed assets. According to the
President, as provided in Section 15(5) of the Constitution, it is a fundamental
objective and directive principle of state policy for the State to abolish all corrupt
practices and abuse of power in Nigeria.

The
Order further defines corrupt practices as activity involving matters regarding
economic sabotage, including human trafficking, drug trafficking and terrorism
involving funds or assets worth N50,000,000
(Fifty Million naira) and above. It also relates to the misappropriation of
government assets; or the transfer of proceeds of corruption.

However,
one must wonder if this drive to stop the abuse of power does not include the
strict adherence to the Rule of Law and the directions of court, for President
Buhari and his administration have directly disobeyed the order of 6 (Six)
courts to effect the bail of former National Security Adviser. Consequently,
one may conclude that this present administration only chooses to uphold that
the Rule of Law when it suits them most.

Other
Provisions of the Executive Order, No. 6

Section
1

The
Order begins in Section 1, by providing that all assets of any citizen,
government officials or politically exposed persons who are complicit in
corrupt practices are to be protected from dissipation by employing lawful or
statutory means including seeking the appropriate court orders. Furthermore,
subsection B, provides that any government official or person who receives any
form of bribes or engage in corrupt and unlawful practices shall be subject to
disciplinary procedures in line with the Public Service Rules.

The
Order empowers the Attorney – General of the Federation with the authority to
enforce the Executive Order and enlist the cooperation of listed law enforcement
agencies in Nigeria. The Order also mandates the A.G Federation to publish
periodically all a list of assets protected pursuant to the Order. A very major
important part of the section is that it requires the Attorney – General to
seek appropriate Order(s) of court where necessary which is to enable the A.G,
freeze or confiscate any funds or assets which is connected to any corrupt
practices until final determination by a court.

Section
2

The
2nd Section of the Executive Order provides for the prosecution of
anyone who seeks to pervert the course of justice. For instance, by interfering
with the free exercise of the President’s authority; by destroying evidence or by
corrupting witnesses.

  

Section
3

This
section provides an opportunity for persons whose rights are infringed upon or
contravened by this Executive Order to seek appropriate redress in court.

Section
4

Via
this section, all enforcement authorities are directed to collaborate with the Federal
Ministry of Justice in implementing this order to ensure the preservation of
assets which come under the purview of the Order.

For
more interaction on the provisions of the Executive Order No. 6; please leave a
comment below or send a mail.

Adedunmade
Onibokun Esq.

One Side Of A Story | Kayode Omosehin Esq.

One Side Of A Story | Kayode Omosehin Esq.

My first contact with a law firm was with Paul Usoro
& Co. in 2001. I was just fresh out of Keme Balogun College, Ibeshe. Some
of my classmates thought I might venture into science because of my reputation
in mathematics, especially Bearing and Distance. That subject got me my oldest
nickname “Bearing”.

I was invited to Paul Usoro
& Co. in Lagos Island, by one Mrs. Godwin (Eme or Eneh), a lawyer and
family friend, just so that I would see how beautiful the profession could be.
Apart from her mixed-race complexion and eyes; her carriage, elegance and command
of English language were parts of what fuelled my desire to read law.

When I got to Paul Usoro &
Co., I concluded that it would be law or nothing else. Everywhere was
glittering. The people around too. By the way, it was my first time to
“enter” an elevator! In the conference room where I was waiting for
my host, I saw pictures of the then best performing lawyers for the preceding 3
years on the wall. The experience was awesome. It made a big impact on me and
inspired me throughout my legal education.

My second contact was F. O.
Fagbohungbe & Co., this time, as a law school intern, in 2010. I would have
loved to go to Paul Usoro & Co but no means. First, Mrs. Godwin relocated.
Second, Paul Usoro & Co changed address and because interns were hardly
paid then, I thought it was best to consider an easily accessible law firm of
commercial practice. God bless Hon. Justice Onibokun, who advised and gave me
the names and contacts of some law firms with buoyant practice in Lagos. I led
the interns from Law School to F. O. Fagbohungbe & Co. Marina, Lagos.

I was working like a full-time
lawyer in terms of commitment and participation in the office work. I would
take positions and express opinions even tried to research some esoteric legal
propositions conceived in my head to maintain visibility. It paid off. Apart
from a cash reward of N50k to each intern, the experience and a valedictory
party put together for us, I was glad to be informed by Justice Onibokun that
“Chief (Fagbohungbe) spoke so well of you.” This feedback fortified
my resolve to be better at it.

The next contact was with
Aelex for NYSC. At Aelex, I didn’t wait to take the job. After winning the 1st
prize in criminal litigation at the law school, I resolved to train in a 1st
tier commercial law firm. The knowledge of criminal law is good and thank God I
got it. But I didn’t want to end up being known only as a “criminal
lawyer”. So, I got posted to Aelex for NYSC.

I took tests and oral
interviews, the last panel had the highest management members. Theo Asotie was
also there. He won the 2nd prize in criminal litigation. Expectedly, he got the
job and did about 6yrs before porting to the Legal Dept of Diamond Bank at its
head office. Aelex was tough but of course promising. From my market research
in 2011, Aelex was paying a corper N95k/month! Also, NYSC stipend was about
N19k. You can pause to do the maths. But I changed my mind after the last level
of interview just before anyone of us got an offer.

I had wanted to train with
Mrs. Adekoya being a leading and Harvard-trained lawyer, but I reckoned from
the encounter that she would be a very strict disciplinarian. Then I thought of
punctuality. From Mile 12 bus stop to Falomo U/bridge, it took me 2hrs or more,
depending on the traffic, available BRT buses at Mile 12 and Keke Marwa
(tricycles) at Onikan/TBS. So, I knew my punctuality was in doubt even when I
set my alarm to go off at 5am. Why? Because I did a week trial, waking up,
dressed and went to the office building just to see how much time it took. I
was not only late on Monday and Tuesday, I was worn out.

Also, I had always believed
that NYSC was my biggest chance to get a good and sustainable job.
Sustainability was always on my mind. As a corper, I had intended to work so
hard that my employers would have no other choice but to retain me. But in
Aelex, I feared punctuality issues might stain my record and I wasn’t sure Mrs.
Adekoya and other partners could forgive that. So, I took precautions to look
for other equally good opportunities. I wrote few job tests and turned down a
few like Eternal Oil and Gas Plc offer of N30k.

Finally I to got Ajumogobia
& Okeke, Sterling Towers, Marina Lagos led by another leading and
Harvard-trained SAN, Mr. Odein Ajumogobia.

I digress. In Aug 1998, after
MKO’s death, I went with my late dad to a man’s house in Ikorodu to discuss a
project. I made the trip because I was on holiday. I didn’t ask if the man was
a lawyer. What I asked him was permission to read a magazine I found on his
table titled “Billionaire Lawyers: How they made their money.” I read
fascinating stories of successful lawyers like TOS Benson, Teslim Elias,
Adetokunbo Ademola & others. I believed the old men deliberately continued
“gisting” just to allow me read much of it.

Every lawyer interviewed in
the magazine disclosed his or her tipping point. One thing struck me in all. It
wasn’t their brilliance that made them succeed. Also, it was not just hard work
though that was said to be key. But it was opportunity combined with the
preceding two. Corollary to that was the fact that, apart from few pathfinders,
someone else gave them the opportunities that defined what they later became in
life. I once read somewhere that you should succeed in life if you have
opportunity to do what you prepare well for and you do it well without
interruption. You may read that again but not literally.

Back to Ajumogobia & Okeke (A&O). Truly, I
didn’t know Sterling Towers had any law firm in it. But after seeing a lot of #BostonLegal, I stared and imagined that if any law
firm was in the building, going by its elegance, it must have been one of the
best. I found out the building has a law firm on the day I dedicated to touring
the entire Lagos Island to compile the names and addresses of big firms.
Websites weren’t that popular and, even if any big firms existed online, it was
cheaper to move around than to “browse” in many cyber cafes around
me, most of which were offering epileptic services.

I recall telling some friends
that Lagos is a 3-region state, for the purpose of legal practice though. The
Island (Victoria Island, Ikoyi and L/Island), the Mainland (Surelere and Ikeja)
and the Rest. Those who know the names of big law firms would find them more on
the Island. I had planned to write 150 job applications with the expectation of
50 employers’ interviews, resulting in 5 offers with at least 1 job with better
rating than the rest! Yes I did the maths but didn’t apply it all. Because I
got the A&O offer with my 7th application letter!

The story of my employment
life is not complete. That’s because I left Ajumogobia & Okeke. This time
to Udo Udoma & Belo-Osagie. The job was advertised and a copy of the
advertorial clip was forwarded to me by my friend, Akoh Ocheni. I checked the
firm’s website and I was fascinated by the sterling profiles of its partners,
including a Harvard-trained lawyer, ex-Senator and current Minister of Nigeria
and a business savvy Managing Partner. The middle level team is also solid. So,
I applied.

I met familiar faces during
the written test and interview sessions. I recalled one of us joking, in the
course of waiting for test materials, that it was unnecessary for them to
continue with test because he believed if it was a single placement, Kayode
Omosehin would get it. We laughed about it. I wish I was that fantastic in the
job interviews.

Like I wrote earlier,
opportunities are the large parts of what constitute a success in any
endeavour. I was employed as other job applicants had expected. One month after
Chisom Ndubuisi. But that was because the first choice of the firm didn’t take
it. Not because it was not a good offer. But because he had accepted an earlier
offer from another equally good law firm, in the same building. So, I may not
be a fantastic job applicant, after all. But I was not bad too.

One thing is important for any
worker seeking to make a career move. Be gentle about it. I learnt that long
ago. If your employer wants you to put in additional period, do so unless you
have obligations elsewhere. The earth is getting smaller with technology. No
living thing remains the same forever, larvae or chickens. We are all in a
small space where the weak ones choke easily. But consider yourself lucky and
be grateful if you have had an opportunity to train and work with the best
hands in any sector.

Tutelage with experienced
seniors is important in all fields and it is second to nothing. Even those who
are forced to start out on their own for lack of opportunities have devised a
way out. The smart ones usually have a more experienced law firm at hand to
consult and work with. That’s how a sustainable generation is built. Thanks.

Kayode
Omosehin, EsQ.

Principal
Associate at Koriat & Co.

Franchising in Nigeria:Models and Legal Considerations

Franchising in Nigeria:Models and Legal Considerations

Introduction
In our current economic clime with the growth of consumerism, markets for goods and services have become increasingly globalised with the coming of age of information technology. Franchising provides a means of expanding a business’ reach into new markets, new products and access to a wider customer base without the need for extensive capital investment. We will discuss the various models before delving into legal/regulatory/commercial considerations.

Franchising Models
Master Franchising 
Under this model, the franchisor (Master Franchisor) grants a third party (the Master Franchisee) the right to operate the business in a given territory, vide a Master Franchise Agreement (MFA). The Master Franchisee is referred as such because it has the right to grant “sub-franchises” to third parties within that territory while also receiving franchise fees from subsequent franchisees. The Master Franchisee effectively becomes the franchisor for that territory, operating the business and recruiting, training and managing a network of sub-franchisees. 
The franchise fees obtained and other ancillary fees obtained from the sub-franchisees may be split between the Master Franchisor and the Master Franchisee, or the Master Franchisee could have a specific franchise fee obligation irrespective of the fees received from sub-franchisees. 
Direct Franchising 
In this arrangement, the franchisor grants a third party the right to operate a single item business, rather than the right to open multiple outlets in a territory as in the multi-unit Developer Franchising or the Master Franchising model. This may be appropriate where the concept is not suited to multiple units (e.g. retail, quick service restaurants etc.), or where a franchisor prefers to have a direct relationship with each franchise operator in a territory. 
Multi-unit Developer Franchising 
Here, the franchisor grants a third party the right to exploit a designated territory by opening multiple outlets. There is need for the third party franchisee to have considerable financial resources in order to fully utilise the territory being granted by the franchisor. This structure is commonly used in retail franchising.
Management Franchising
This structure is more common when the developer has sufficient capital to invest in establishing the brand in a given territory, but does not have access to the depth of operational expertise and resources required to help ensure its success in that market. The developer obtains the right to operate an outlet(s) at the location but will engage a management company to operate the business on its behalf, which could be an affiliate of the franchisor. This structure is very common in the hotel and leisure sector.
LEGAL CONSIDERATIONS 
Whatever model is adopted, the franchise attorney must ensure that strategies are put in place (dependent on the party he represents) for the efficient operation of the franchise.
Brand Protection
Businesses should invest prudently to ensure that each target market will be underpinned by registered trademarks, patents, design rights (if appropriate) etc. Intellectual Property is usually never in perpetuity and the franchisor must ensure that a mechanism is put in place for renewals. Section 23 Trademarks Act, Cap. T13, LFN 2004, 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. 
Real Estate-Franchise Lease
It is important for the lease and franchise term to be synchronized. A key issue that could arise, where the terms do not align is that a franchisee may be left with no premises from which to operate or the franchise term ends but the lease term is still operational. Both of these scenarios are not only uncomfortable but can mean unnecessary financial exposure for franchisees.
In sorting out the real estate factor in franchising, there are two usual outcomes: either the franchisor or the franchisee holds the lease. The franchisor holding the lease is a more straightforward arrangement because at the end of the franchise relationship, the franchisor simply recovers the premises from the franchisee (tenant). It should be noted that by holding the lease, the franchisor is primarily liable if the franchisee is in default of its (‘sub-tenant’) obligations. 
Where the franchisee is to hold the lease, the franchisor may assist the franchisee to locate a suitable property and negotiate with the lessor to secure: competitive rent; rent-free period; and other incentives for the franchisee. This could be key in enhancing the profitability prospects of the franchise, especially in the start-up period. Many franchisors provide this service and even charge the franchisee an additional fee as part of their franchise package. Depending on the circumstances, it may be prescient for the franchisor to obtain an acknowledgment from the franchisee stating that the franchisee has: (1) conducted its own due diligence concerning the premises, (2) satisfied itself that the location is suitable; (3) entered into the lease as a result of its assessment of the premises; and (4) not relied on any representations or statements from the franchisor regarding the suitability of the premises. This is in order to reduce potential liability on the franchisor.
With the franchisee as lease holder, the franchisor has no control of the premises, should the franchisee exit the franchise relationship. This could result – if the franchise agreement omits to preclude it – in the erstwhile franchisee deciding to remain in occupation of the premises under a different brand. In order to avoid this, the franchisor can insist on a clause in the franchise agreement stating that upon termination of the franchise relationship, the franchisor be granted the right to ‘step into the shoes’ of the franchisee in respect of the lease. This clause would be useful where the franchisor wants to retain possession of the premises due to its marketability, customer target and range etc. 
Restraint of Trade
It may be necessary for the franchisor to include a trade restraint clause at the determination of the franchise relationship. This is to ensure that the franchisee is unable to use trade secrets garnered from the franchisor to operate as a competitor within a certain period. In Nigeria, the courts have held that trade restraint clauses are enforceable as long as same is within the scope of reasonability. In Koumolis v Leventis Motors Limited [1973] NSCC 557, the Supreme Court (SC) held that it is the role of the employer who seeks to enforce the restraint clause against the employee to show that the clause is designed for the protection of some exceptional proprietary interest of the employer and it is reasonable for such purposes. It went further to hold that an employer can lawfully prohibit the employee from setting up a competing business, or accepting a position with one of the employer’s competitors, so as to be likely to destroy the employer’s trade connection by a misuse of his acquaintance with the employer’s customers or clients.  
Labour Issues
A clause should be included stating that the franchisor cannot directly control the franchisee’s employees, including hiring or firing them. This is particularly important as globally, there is a debate being held as to whether the franchisor can be held jointly liable with the franchisee in the event of a breach of labour laws. Joint employer liability means the franchisor is jointly and severally liable for any labour or employment law violations committed by its franchisees (e.g. unpaid wages, unpaid benefits, minimum wage violations, anti-unionization activity, etc.).
In Australia, the Fair Work Amendment (Protection of Vulnerable Workers) Act 2017 (FWAA) was passed to protect employees by extending potential liability to franchisors for employment law breaches by franchisees. The liability is not automatic, but will arise where the franchisor “knew or could reasonably be expected to have known that the contravention by the franchisee entity would occur, or a contravention of the same or similar character was likely to occur”, subject to a defence that the responsible franchisor employed reasonable steps to prevent the breach (section 558B FWAA).
Co-employment refers to a situation where an employee would be regarded as being employed by two employers any one of which may be bound by the terms of the contract of employment, and where each party has duties and obligations as an employer towards the employee. The principle of co-employment has been recognised by Nigerian Courts. For example, in Onumalobi v. NNPC & Anor. [2004] 1 NLLR (Pt. 2), 304, the SC held that the two Respondents were co-employers of the Appellant, relying on section 91 Labour Act Cap L1 LFN 2004 (LA). Section 91 LA defines an employer as “any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person…” The question whether two employers could be held to be co-employers in respect of an employee, will depend on the contract of employment and the surrounding circumstances. 
Wright v. Mountain View Lawn Care, LLC Civil Action No. 7:15-cv-00224, was a case in the United States of America where an employee of a landscaping franchise could not show that the franchisor exercised enough control over her employment or that other factors suggested it should be held liable as a “joint employer” for the alleged unlawful acts of the franchisee. She relied on the franchisor’s control over logos, uniforms, letterhead, and vehicle colour. However, the West Virginia Federal District Court explained that control over the franchisee was not relevant and it was control over the plaintiff’s employment that mattered—which was lacking here.
Conclusion
Franchising is an important business tool; however it must be properly structured in order to deliver its anticipated economic benefits. In March, 2018, the United States-based doughnut and coffee franchise, Krispy Kreme, opened its doors in Nigeria; it is being promoted by Quality Foods Africa Nigeria Limited (QFA). Master Franchising might be the most suitable model of operation in Nigeria in order to ensure rapid growth and expansion whilst retaining the high standards.
However, prospective parties must ensure they conduct their due diligence. Franchisors must ensure that adequacy of process to protect themselves from labour infractions committed by franchisees. Some of these include: franchisors limiting the level of trainings offered to franchisees; trainings should be limited to franchise owners and key employees with managerial authority; online training modules for lower level employees (if available) should be licensed to the franchisees, who in turn will provide the online training to their employees. Others are non-involvement in franchisee’s employment or human resource related practices such as hiring, training, firing, disciplining, setting work hours, handling payroll, providing worker’s compensation insurance, etc. 
If job applications may be submitted through the corporate website, it should be stated clearly that they will not be reviewed by the franchisor but will simply be passed along to the appropriate franchisee. This is to ensure that the franchisor cannot be deemed an employer according under section 91 LA. A well-structured franchise would reduce future disputes between parties as well as ensure both parties’ long term investment goals are met.
Franklin Okeke is a commercial lawyer focusing on franchise arrangements and practices with Messrs LeLaw Barristers & Solicitors, Lagos
Privileged communication: does the law offer sufficient protection? | Zeniath Abiri

Privileged communication: does the law offer sufficient protection? | Zeniath Abiri


Privilege is a rule of evidence that allows
the beneficiary of the privilege to refuse to disclose information or provide
evidence about a certain subject or to bar such evidence from being disclosed
or used in a judicial or other proceeding. This principle was judicially
defined in B v. Auckland v. Society,[1]
as a right to resist the compulsory disclosure of information. Privilege acts
to protect a witness from answering questions in evidence, and/or entitles a
party to refuse to produce documents for inspection, during the course of legal
proceedings. This doctrine is thus, not just a rule of evidence, but is also a
substantive legal right. It follows that it would amount to a breach of this
fundamental legal right, for a court to draw any adverse inference, from the
making of a valid claim to privilege.[2]

Privilege
communications is protected in various forms and in varying degrees, in
different jurisdictions of the world. Part 3.10 of the Australian Evidence Act
2011,[3] deals with privileges and by Sections 117-128
thereof, the following privileges have been identified; (a) Client legal
privilege, (b) Journalist privilege, (c) Religious confession privilege and (d)
Privilege against self-incrimination.

In
Nigeria, Sections 164 – 176 0f the Evidence Act of Nigeria 2011[4] and Section 16 of the Freedom of Information Act,
L.F.N 2011,[5] provides for privileged communication. A combined
reading of those sections, reveals that the following types of privilege exist
in Nigeria; (a) Spousal privilege. [6](b) Judicial privilege,[7] (c) Legal profession privilege,[8] (d) Privilege against self-incrimination,[9] (e) Health worker – patient privilege ,[10](f) Journalist privilege,[11] and (g)Without prejudice privilege.[12]

While
some jurisdictions offer legal protection for communications between Priest and
penitent, Nigeria offers no such protection. Such protection is only offered by
the rules of the profession, where such rules exist.

In
the rest of this paper, I focus on the three most prominent instances of
privilege, as these instances cut across most jurisdictions of the world.

Legal Profession Privilege.

Legal
professional privilege seeks to protect communication between a client and his
lawyer. It is based on the need to obtain legal advice, freely, safely and
sufficiently. The rationale for the rule of legal professional privilege, was
given in Anderson v. Bank of British Columbia[13],
in the following words; “….a man, in order to prosecute his rights or defend
himself,…should have resource to the assistance of professional lawyers….he
should be able to place unrestricted and unbound confidence in the professional
agent, and the communication he so makes, should be kept secret, unless with
his consent, that he should be enabled to properly conduct his litigation.”[14]

Although,
privilege belongs to the party and not the lawyer, the right of privilege is
most often asserted by the lawyer.[15]
This privilege is also protected by Rule 19 (1) and (2) of the Rules of
Professional Conduct for Legal Practitioners, 2007, in Nigeria (“R.P.C
Nigeria”).[16]

Duration of Legal Profession Privilege: The rule is
generally, once a privilege, always a privilege and once privilege is
established, the mouth of the lawyer is ‘shut forever’.[17]
This position was reaffirmed in Nationwide Building Society v. Various
Solicitors,[18]
Blackburn J. took a differing view in where he held that the right to privilege
is absolute and the lawyer’s mouth is indeed, ‘shut forever’. In the earlier
case of R. v. Derby Magistrates Court Ex P. B.,[19] Lord Nicholls said obiter, that in circumstances
where the client has no interest in asserting the right to privilege and the
enforcement of the right would be seriously prejudicial to another, in
defending a criminal charge or in some other way, he cannot expect the law to
protect the right. I agree more with the Lord Nicholls view, as same seems to
ensure that the interest of justice is better served, which is the whole
essence of the legal system. It is important to note that the duration of this
form of privilege, continues even after employment has ceased.[20]

Categories of Legal
Professional Privilege:
There are basically two categories; (a) Legal
advice privilege: protects communication between a client and his lawyer, which
are part of the process of the giving and getting of legal advice, without the
existence or contemplation of legal proceedings; (b) Litigation privilege only
covers communications made when there a pending litigation or a reasonable
expectation of one. This form of privilege protects information which comes
into existence, for the purpose of gathering evidence for legal proceedings and
usually, includes communications made to 3rd parties, for this purpose.

Instances where information
amounting to Legal Profession Privilege may be admitted.

By
Rule 19 (3) of the R.P.C Nigeria, a lawyer may reveal confidences or secrets
with the consent of the client or clients affected, but only after a full
disclosure to them, in the following instances;

confidences
or secrets when permitted under the rules of the R.P.C Nigeria, or required law
or a Court order;

where
the privileged information reveals an intention of his client to commit a crime
and the information necessary to prevent the crime;

secrets
necessary to establish or collect his fee or privileged communication necessary
to defend himself or his employees or associates against an accusation of
wrongful conduct, and

where
a court finds that the interest of the public in having information disclosed
is greater and far more vital than protecting the attorney-client communication.[21]

This
is the general position in nearly all jurisdictions worldwide.

“Without Prejudice” Privilege.

This
refers to written or oral communications, which are made for the purpose of a
genuine attempt to settle a dispute, without having to recourse to litigation.
Such communications are not admissible in evidence.[22]

In
Cutts v. Head,[23]
Oliver C.J said the rationale for this rule, is to encourage disputing parties,
to as much as possible, settle their disputes, without recourse to litigation,
and in doing so, parties should not be discouraged by the knowledge that what
is said in the course of such negotiations, may be used to their prejudice, in
the course of legal proceedings.[24]

Information disclosed without
prejudice may be given in evidence in the following circumstances:

When
the court needs to determine whether the parties reached a
compromise/agreement.

To
determine whether an agreement apparently concluded by the parties, should be
set aside on the grounds of misrepresentation, fraud or undue influence.

To
establish a clear statement which is made by one party to the negotiations, on
which the other party to the negotiations is to act and does infact act, may be
admissible, as giving rise to estoppel.

To
explain delay or acquiescence.

To
prevent the inappropriate use of privilege. Such as where a party cites the
negotiations as reason for the delay, the other party may produce the
communications to show they do not justify the delay.

Where
the word, “without prejudice save as to cost”, is used, the communications may
be admitted on questions as to cost.[25]

In
addition to the above, communications made ‘without prejudice’ will be admitted
where the dispute has been resolved or the parties agree to waive privilege.

Privilege against
Self-Incrimination.

No
person is bound to answer any question in legal proceedings, if the answer
thereto, may expose him to any criminal charge or penalty. It also encompasses
the accused person’s right to silence. However, where the accused in a criminal
trial chooses to give evidence, he may be asked any question in relation, in
cress examination, irrespective of the fact that such questions tend to
incriminate him with respect to the offence charged. He may not however, be
asked questions tending to show he committed other offences, save for limited
situations[26].
The privilege allows a person to refuse to incriminate himself or his spouse.[27]

Because
this form of privilege is usually claimed after the holder has been sworn as a
witness, he cannot refuse to attend court, for fear of incriminating himself. [28]

It
is not enough for the witness to simply assert that answering the question
incriminates him. The court must be satisfied that there is reasonable ground
to apprehend such danger to him, from his being compelled to answer the
question.[29]

Transfer of the Right of
Privilege.

Although
unusual, where contractual rights transferred or assigned, includes a claim to
privilege, the claim may also be asserted and enjoyed, by the assignee or
successor-in-title.

Conclusion.

It
is my opinion that despite the exceptions to the rule on privileged
communication, the principle offers sufficient protection for those it seeks to
protect. As it concerns Legal Profession Privilege for instance, The R.P.C Nig.
makes it professional misconduct, for a legal practitioner to breach this
duty, and entitles the client to sue such a legal practitioner, and/report
the legal practitioner to the relevant body, for appropriate disciplinary
measures to be taken. Even though exceptions to the admissibility of privileged
communications exist, they are limited in scope and applied very strictly. It
is a right treated with highest regards and the need to waive it must outweigh
the need to protect the right, unless where the holder expressly waives it.

[1] [2003] 2 A.C.
736, para. 67,

[2] See Wentworth v.
Lloyd [1864] 10 H.L.C. 589.

[3] (hereinafter
referred to as the E.A Aust.)

[4] (hereinafter
referred to as the E..A Nig.)

[5] (subsequently
referred to as the F.I.A Nig.)

[6] S. 164, E.A.
Nig.

[7] S. 165, E.A.
Nig.

[8] .S. 170-173 E.A.
Nig, S.16 (a) F.I.A. Nig.

[9] S. 176 E.A. Nig.

[10] S.16 (b) F.I.A.
Nig.

[11] S. 16 (c),
F.I.A Nig.

[12] with respect to
disclosures made in the course of negotiations to settle a dispute. S. 28 E.A.
Nig.

[13] [1875-1876]
L.R. 2 Ch. D. 644 @ 649

[14]
  Horn v. Richard (1963)2 All N.L.R. 40 @ 41 and Three rivers D.C v.
Bank of England (No. 5) [2003] Q. B. 1556, para. 39.

[15] (except in
cases where the claim of privilege is against self-incrimination).

[16] S.126 (b) E.A.
Aust. (It must be noted that while privilege protects documents from
inspection, it does not necessarily protect them from disclosure).

[17]  The Agis
Blaze [1986] 1 Llyods Rep. 203 CA.

[18] [1999]
P.N.L.R., 52 @ 69

[19] [1996] 1 A.C.,
487

[20]   S.
170 (3) of the E.A. Nig..

[21]  S. 25
(1)(c) F.I.A Nig..

[22] GPI Leisure
Corporation v. Yuill [1997] 42 N.S.W.L.R., 225.

[23]  [1984]
Ch. 290 @ 306

[24] See also, the
Nigerian case of Chief  Oredin v. I.P.H. El Khalil & Ors. [1978] 2
OY.S.H,C. 325.

[25] See Unilever v.
Proctor & Gamble 28 [2001] 1. All E.R., 783, per Robert Walker L.J.

[26] Documentary
Evidence
Charles Hollander Q.C. Sweet & Maxwell, (9th edition),
para. 17-01. See also, Section   36 of the Constitution of Nigeria
1999 (as amended)

[27] See Blunt v.
Park Lane Hotel Limited [1942] 2 All E.R. 187 @ 189.

[28] See Boyle v.
Wiseman [1855] 10 Exch. 647. published by Sibon Books Ltd,

[29] See R. v. Coote
[1873], L.R. 4 P.C. 599. See also,
Law & Practice of Evidence
in Nigeria
, by Afe Babalola, 2001 (ch 9 p. 173).

Zeniath Abiri

Litigator, Property, Probate Consultant and
Human Rights Activist.

Source: LinkedIn 

Image – www.blog.ipleaders.in

Random Musings On The Use Of Drones In Nigeria | Toju Dottie

Random Musings On The Use Of Drones In Nigeria | Toju Dottie

More than ever, an in-depth and intricate
study of the law is absolutely necessary given the rapid technological
advancements being made around the world. The most recent wave that has hit
Nigeria is the use of drones.

With
the Christmas and New years holidays just recently observed, I attended quite a
number of events hosted by friends. In the course of attending these events, I
noticed the use of these peculiar-flying objects (which I have now come to know
as drones) used by photographers to record and capture moments. 


Being
a lawyer, I started wondering (some of these scenarios are a bit stretched but
realistic) the likely legal issues that may arise with the improper use of this
new technology. A few came to mind. 

Find
below:

Invasion
of Privacy / Confidentiality:  The use of camera fitted
drones
to film people  in certain situations or
companies in business meetings where they believe or expect to have privacy.
For example, a woman sun bathing in her backyard or people in a business
meeting on company’s property strategizing- discussing certain confidential
information as it relates to the business. Such  footage (video or
photograph) if shared online can release trade secrets to competitors and
ultimately violate one’s right to privacy.

 There
is currently no comprehensive Privacy Act in Nigeria that sets out detailed
provisions on the protection of the privacy of individuals and citizens, safe
for section 37 of the Nigerian Constitution (1999) which provides that “the
privacy of citizens, their homes, correspondence, telephone conversations and
telegraphic communications is hereby guaranteed and protected” 

There is also no guideline that
set outs the use of drones for recreational purposes; so it appears that there
is no functional framework to balance the use of drones and the right to
privacy.

An
aggrieved party, in this instance might in the meantime make use of the
Tortious Liability of Trespass and Nuisance. A trespass is any physical
intrusion upon property owned by another. When considering these issues in the
context of intrusions into airspace, the plaintiff must prove unwarranted
interference with his land arising from intentional or negligent entry -in this
case causing an object to intrude into the plaintiff’s airspace.

Nuisance
is based on a property owner’s right to use and enjoy the land. A plaintiff in
this regard must show that the object in airspace interfered with the use and
enjoyment of his land and that the interference was unreasonable.

Copyright
Issues: This occurs where a photographer( under pressure to please his
client) hires a third party drone operator to take aerial photographs of the
event and the third party operator uploads the pictures online to advertise his
aerial photography services.

 In
such a scenario, given the automatic ownership nature of
copyrights, questions will arise as to who in fact owns copyright in the
photographs or videos that have been captured. Infringement issues may also
arise by using works from the footage captured by a person not the owner of the
drones.

Patent
& Design Issues- I will speak in this context in reference to the Nigerian
Patent & Design registry. Usually protection for an invention such as the
drone will be in functionality and shape of the drone. In Nigeria, Patent and
Design examiners do not actually carry out the examination as to the substance
of the application. Therefore, in an instance where there are two applications
for drones, the patent examiner will approve both applications in respect of
functionality (Patent) and Design (Shape) as the registry staff are not trained
or experienced to examine a patent in respect of patentability or conformity
with the law; thereby making patent granted under this system weak. This
in itself, does not encourage creativity and innovation as manufacturers will
not put in the work or make proper research (as obtains in other jurisdiction)
to ensure that the equipment is improved as any patent /design application
brought is not thoroughly examined but granted patent.

Cyber
– Security: Drones are controlled my wifi radio signals; hence making it
vulnerable to being manipulated by the operator who has access to the drone
wifi network. Therefore the drone might be used in hacking, making
unlawful interception and signal manipulation during flights all resulting to
breach in security in cyber space.

 Terror
Attacks-.Following the aforementioned cyber security issue, drones may be
used to carry and disseminate bombs in public; thereby being used as an
instrument to cause terror and mass destruction.

In
conclusion, I strongly recommend a meticulous look at our laws, regulatory
bodies vis a vis this new technology to adequately balance these innovations
and the new problems it possesses.

Disclaimer:
This article is only intended to provide general information on subject matter
and does not itself create a client /attorney relationship between the reader and
the author. Specialist legal advice should be sought about the readers
specific case.

Toju Dottie

Senior Associate & Consultant

George Ikoli & Okagbue

Source: Linkedin

Brand protection – why you should not purchase counterfeit luxury goods | Davidson Oturu LL.M

Brand protection – why you should not purchase counterfeit luxury goods | Davidson Oturu LL.M


The 2018 World Cup is scheduled to come up in
June 2018. The Golden State Warriors and the Cleveland Cavaliers are playing
the NBA Playoff Finals in June 2018. Roland Garros, the French Open, is also
taking place in the same month. Due to these significant sporting events, there
has been an upsurge in the sale of jerseys and sporting kits worn by athletes
and teams that are participating in the sporting fiestas. 


Sponsors
of sporting kits are also not left out from participating in these events; it
is reported that the English national team secured a sponsorship deal from Nike
that is valued at £400m.[1] However, due to the pricey nature of most of the
luxury items such as Gucci, Nike, Adidas and Calvin Klein, amongst others,
there is the tendency for counterfeiters to manufacture counterfeit goods and
sell them to the public who unwittingly purchase them. Statistics from the
Organisation for Economic Co-operation and Development (OECD) shows that
Ray-Ban, Rolex, and Louis Vuitton are the most copied brands worldwide with
Nike being the most counterfeited brand globally. Websites have also sprung up
that specialize in the sale of counterfeit goods and consumers have encouraged
their trade by patronizing these inferior rip-offs. 

A
classical case is the Nigerian football jersey which is being sold through Nike
vendors for $90. However, the knockoffs and counterfeit jerseys that have
proliferated the market are being sold for as little as $5[2]

What are counterfeit goods?

Counterfeits are
goods made or sold under another’s brand name or trademark without the brand
owner’s authorization. It can be a form of trademark infringement or passing
off (depending on if the trademark is registered) as the manufacturers of the
counterfeit goods sells or passes off similar looking goods bearing the
trademark or brand of the original brand owner. 

A
trademark will be deemed to have been infringed where a person, other than the
proprietor or owner of the mark, uses an identical trademark so nearly
resembling the registered trademark as to be likely to deceive or cause
confusion in the course of trade in relation to goods in respect of which it is
registered[3]. All that the owner of the trademark would be
required to show is that the trademark has been registered. 

However,
where the trademark is unregistered, the counterfeiter will still be liable for
passing off his goods as that of the owner of the trademark/brand. The owner of
the brand would however have to show that there is an already established
goodwill and reputation attached to the brand. 

How valuable are counterfeits?

It
is estimated that the production of counterfeit goods has grown by over 10,000%
over the last two decades. A study by the International Chamber of Commerce (ICC) estimated
that the global value of all counterfeit goods reaches over $650
billion every year.
The same study projected that by 2015 the
upper bound of the global value of counterfeit and pirated goods was $1.77
trillion,
a number that is roughly equal to the GDP of Brazil
and represents over 2 % of the world’s total economic output in 2014[4]. In 2016 alone, the U.S. government seized $1.38
billion in counterfeit goods across various industries[5]. The United Arab Emirates has also had its
fair share of counterfeits as it is reported that in 2016, the Department of
Economic Development (DED) in Dubai seized 67.7 million counterfeit items
amounting to Dh1.16 billion. Also in 2017, the Anti-Economic Crimes department
of Dubai Police handled 243 cases involving commercial fraud and piracy – worth
Dh28, 882,985, including cases involving 719,134 counterfeit products[6].

Recent
statistics from The Economist shows that
counterfeit products make up 5 to 7% of world trade[7]. As at 2014, it was said to have cost an estimated
2.5 million jobs worldwide[8]. Clearly, counterfeiting of goods appears to be a
lucrative business for the counterfeiters. 

What to do where a brand is
being counterfeited

Civil remedies

The
likelihood that consumers will be confused by the goods, which is the standard
of trademark infringement, is evident in counterfeiting as the counterfeiter’s
primary purpose is to confuse or dupe consumers.

Thus
although there is no statutory civil remedy provided for counterfeiting under
Nigerian law, the owner of a brand can institute an action at the Federal High
Court for trademark infringement. 

Where
the trademark is unregistered in Nigeria, the owner of the brand can bring an
action for passing off which can be instituted at the High Court.

Where
a brand owner is successful in a civil action, he can get orders of injunction
restraining further acts of infringements, delivery of infringing articles and
items as well as accounts for profits, costs and damages.

Criminal remedies

With
regards to criminal remedies, the brand owner can report the counterfeiting to
the government authorities and actions can be brought under the Merchandise
Marks Act[9] and/or the Trade Malpractices (Miscellaneous
Offences) Act.[10]

Section
3 of the Merchandise Marks Act provides that every person who forges any trade
mark, falsely applies to goods any trade mark or any marks so nearly resembling
a trade mark as to be calculated to deceive or applies any false trade
description to goods is guilty of an offence.

Furthermore,
anyone who sells or has in his possession for sale or any purpose of trade or
manufacture, any goods or things to which any forged trade mark or false trade
description is applied, or to which any trade mark or mark so nearly resembling
a trade mark as to be calculated to deceive is falsely applied is also guilty
of an offence except if he can prove that he acted innocently or had no cause
to suspect the genuineness of the trademark. 

Where
the counterfeiter or the seller of the counterfeit goods is found guilty under
the Merchandise Marks Act, he will be sentenced to a term of 2 years or a fine
or both imprisonment and a fine.  The Merchandise Marks Act also
prescribes imprisonment for 6 months or a fine of N100 upon summary
conviction by a Magistrate. In both cases, the offenders are liable to forfeit
all chattel, articles or instruments used in committing the offences.

Regulatory bodies

The
brand owner may also lay complaints before regulatory agencies such as the
Nigeria Customs Service (NCS) and the Standards Organisation of Nigeria (SON).
Although Nigeria does not presently have a customs recordal system, brand
owners can petition the Comptroller General of the NCS and request for the
organization’s involvement with regards to the prevention of the importation of
counterfeit goods at the ports and borders. Where there are reasonable grounds
to suspect that anything is liable to forfeiture, the NCS can seize and detain
such counterfeit goods immediately upon entry into the Nigerian ports or
borders.

On
the other hand, the SON is the statutory body
vested with the responsibility of standardising and regulating the quality of
all products that are to be used in Nigeria. It has a set of guidelines for
exports to Nigeria called the Standards Organization of Nigeria Conformity
Assessment Programme (SONCAP). SONCAP is used to verify products exported to
Nigeria except those that appear on the Excluded Product List.

A
brand owner who has information about the counterfeiting of his product may
make a complaint at the SON office. SON may then conduct an investigation and
depending on the outcome, it may carry out a raid to confiscate the counterfeit
products. 

Conclusion

Part
of what fuels counterfeiting is the fact that consumers tend to view buying a
counterfeited luxury good or jersey as being harmless and a good bargain. But
consider this: counterfeits wreak havoc on the economy and cause other
financial turmoil for businesses such as theft of intellectual property rights,
low turnover, stolen know-how, lost jobs, wrongful lawsuits caused by
counterfeited products and price hikes. 

While
the brand owners and security agencies continue to find ways to stop
counterfeiters from profiting from sale of counterfeited goods, the consumers
have their own part to play: do not buy that counterfeit!

For extensive information on
brand protection and intellectual property rights, you may contact the author
of this article at doturu@aelex.com
.

[1]Football
Association secures new £400m England kit deal (The Guardian, 13 December 2016

[2] Nigeria World
Cup kit sells out in minutes as fakes flood Lagos markets (CNN)

[3] Section 5(2) of
the Trademarks Act

[4] Counterfeiting
& Piracy (BASCAP) (International Chamber of Commerce) <
https://iccwbo.org/global-issues-trends/bascap-counterfeiting-piracy/>

[6]Dubai Police
handle counterfeit cases worth Dh29m in 2017 (Khaleej Times)

[7] Knock-offs catch
on (The Economist

[8]Crackdown on
counterfeiting (International Organisation for Standardisation)

[9] Chapter M10 Laws
of the Federation of Nigeria 2004

[10] Chapter T12
Laws of the Federation of Nigeria 2004

Davidson Oturu
LL.M

Partner at
Aelex/IP, Franchising & Brand Protection | Corporate & Commercial | Dispute Resolution

Cybersquatting –How To Protect Your Domain Name/Website From Cybersquatters In Nigeria | Davidson Oturu LL.M

Cybersquatting –How To Protect Your Domain Name/Website From Cybersquatters In Nigeria | Davidson Oturu LL.M

Domain Name

A domain name is a unique name that an
individual or organization chooses in order to identify his/its website. Every
website has its own domain name which comprises of a registered Internet
Protocol (IP) address. Example of domain names for some popular websites
include “facebook.com” and “mondaq.com”.

A domain name is required to have a word
(Second-Level Name) and a suffix (Top Level Domain Name). For example, with the
domain name mondaq.com, “mondaq” is the Second-Level Name and the
suffix, “.com”, is the Top Level Domain (TLD).


The Internet Corporation for Assigned Names
and Numbers (ICANN) recognizes the following Top Level Domains:

·        infrastructure
top-level domain
 (ARPA)

·        generic
top-level domains
 (gTLD)

·        restricted
generic top-level domains
 (grTLD)

·        sponsored
top-level domains
 (sTLD)

·        country
code top-level domains (ccTLD)

·        test
top-level domains
 (tTLD)

However, TLDs are generally categorised as
generic Top Level Domains (gTLDs) and Country-Code Top Level Domain (ccTLDs).
Thus a person may choose to register his domain name in any number of existing
TLDs.

What is cybersquatting?

There are a number of definitions of the
term, cybersquatting. The term is derived from “squatting” which is the act of
occupying an abandoned or unoccupied space or building that the squatter does
not own, rent, or otherwise have permission to use.

One author defines cybersquatting as “when a
person other than the owner of a well-known trademark registers
that trademark as an Internet domain name and then attempts to profit from it
either by ransoming the domain name back to the trademark owner or by using the
domain name to divert business from the trademark owner to the owner of the
domain name”[1].

ICANN defines it as “generally bad faith
registration of another’s trademark in a domain name[2],”The Nigerian Cybercrimes (Prohibition, Prevention, Etc)
Act 2015 (Cybercrimes Act) also defines it as a crime committed where a person
intentionally makes use of a name, business name, trademark, domain name
or other word or phrase registered, owned or in use by any person on the
internet or any other computer network, without authority or right, and for the
purpose of interfering with their use by the owner, registrant or legitimate
prior user”.[3]

In summary, cybersquatting can be said to
refer to illegal domain name use or registration. It can have different
variations and can arise where in bad faith, a person steals a domain name in
order to profit from the goodwill of someone else’s trademark or company name
which could lead to an increase in patronage and website visits by unsuspecting
consumers. It can also arise where a person registers the domain name that
he has no affiliation with so that he can eventually sell it to the rightful
owner of the trademark.

Another variation of cybersquatting is
“typosquatting” which is also called Uniform Resource
Locator (URL) hijacking. This is a form of brandjacking which
relies on typographical errors made by Internet users when inputting
website address into a web browser.
Thus in a situation where a user accidentally enters an incorrect URL or
website address, they may be led to the cyber squatters website. The registered
domain will have advertisements of services similar to the original one so that
the user who made a typing mistake will click on these links, generating
revenue for the bogus domain name.

Examples of some cases involving
typosquatting include the following:

1)     Google v
Goggle

In 2011, Google filed a complaint with
National Arbitration forum and successfully got
“Goggle.com”, “Goggle.net”, and “Goggle.org”,
which were considered phishing/fraud sites, taken down. [4]

2)     YouTube v.
YouTube.Ph and Youube

Google also filed complaints with the World
Intellectual Property (WIPO) over the use of the domain names “YouTube.ph” and
“youube .com”. While the former was a domain name that led to another website,
VideoRewardCentral.com[5], the latter was a proxy site loaded with advertisement
link[6] 

3)     Air France
and British Airways

International airlines such as Air France and
British Airways have also been victims of cybersquatting. www.airfrance.com has
been typosquatted by www.arifrance.com, which diverted users to a website
peddling discount travel. Similarly, www.britishairways.com has been
typosquatted by www.british-air-ways.com[7]


Remedies

A victim of cybersquatting in Nigeria has
three options which are as follows:

Institute an action under the provisions of the
Cybercrimes Act 2015;

use an international arbitration system
created by ICANN; or

institute proceedings at the Nigeria Internet
Registration Association 

These remedies are considered below.


INSTITUTE AN ACTION UNDER THE
PROVISIONS OF THE CYBERCRIMES ACT 2015

It is interesting to note that the
Cybercrimes Act criminalises cybersquatting which means that it is an offence
punishable under the law. Section 25 of the Cybercrimes Act provides that a
person who commits the crime of cybersquatting is liable to be punished with
imprisonment of a maximum term of two years or a fine of not more than N5,000,000 (five million Naira) or to both the
fine and imprisonment.

It is also noteworthy that the owner of the
domain name that is being subjected to cybersquatting does not need to prove
that he owns a trademark that is related to the domain name. What he would be
required to do would be to show that he has a registered name, domain name or
business name. Where the complainant is successful in court, an order can be
made directing the cybersquatter to relinquish such registered name, mark,
trademark, domain name, or other word or phrase to the complainant who would be
deemed to be the rightful owner of the domain name.

USE AN INTERNATIONAL ARBITRATION
SYSTEM CREATED BY ICANN

In order to address all disputes which may
arise regarding the ownership of a domain name, ICANN in conjunction with WIPO
developed the Uniform Dispute Resolution Policy (“UDRP”) and
the UDRP Rules.

Through the UDRP, ICANN and WIPO have
provided a mechanism for rapid, cheap and reasonable resolution of domain name
conflicts by avoiding the traditional court system for disputes and allowing
cases to be brought to a set of bodies that determine domain name disputes.The
UDRP (https://www.icann.org/udrp/udrp-policy24oct99.htm) sets out
the framework for the resolution of disputes between a domain name registrant
and a third party (i.e., a party other than the registrar) over the abusive
registration and use of an Internet domain name. The essence of the UDRP is to
enable anyone in the world file a domain name complaint concerning a gTLD or
ccTLD using the UDRP Administrative Procedure. Thus any owner of a domain name
that believes that someone is cybersquatting can file a complaint before any
ICANN accredited dispute resolution service provider.

This is made possible due to the fact
that ICANN accredited registrars that are authorised to
register names in the gTLDs and the ccTLDs that have adopted the Policy and agreed to abide
by and implement the UDRP Rules for those domains. Furthermore, any person or
entity wishing to register a domain name in the gTLDs in question is required
to consent to the terms and conditions of the UDRP. According to the ICANN
policy, a domain registrant must agree to be bound by the UDRP — they cannot
get a domain name without agreeing to this. To effect this, a Dispute
Resolution Policy clause is usually inserted in the domain name registration
agreement stating that if the registration of the domain name is challenged by
a third party, the registrant shall be subject to the provisions specified in
the UDRP.

Paragraph 4(a) of the UDRP Rules provides
that a complainant must be able to establish the following:

  • the domain name registered by the domain name registrant is identical or confusingly similar to a trademark or service mark in which the complainant has rights; 
  • the domain name registrant has no rights or legitimate interests in respect of the domain name in question; and
  • the domain name has been registered and is being used in bad faith.

The effect of the foregoing is that only the
owner of an already existing trademark or service mark can bring an action
under the UDRP. Consequently, where a domain name offends the provisions of the
UDRP Policy, there will be no financial remedy/award but the offending domain
name would be cancelled and/or transferred in favour of the person who
possesses the registered trademark. 

Where the cybersquatter refuses to attend the
UDRP proceedings, the ICANN arbitration forum will hear the complaint in his
absence and examine the proof presented by the complainant. If it is deemed
satisfactory, a decision can be entered in favour of the complainant.


PROCEEDINGS AT NiRA

The Nigeria Internet Registration
Association (NiRA) is the Nigerian registry for .ng Internet Domain Names
and it maintains the database of names registered in the .ng ccTLD. If a
domain name owner’s website is a ccTLD and ends with ‘.ng’, he may choose to
institute his action at the NiRA which has its own set of rules and policies
known as the NIRA Dispute Resolution Policy (NDRP).

The NDRP (https://www.nira.org.ng/images/Policies/NIRA DISPUTE RESOLUTION
POLICY.pdf
) is similar to the UDRP and sets out the framework for
the resolution of ccTLD domain name disputes. Paragraph 4a of the NDRP Rules is
identical to paragraph 4b of the UDRP Rules and it sets out the conditions
that the complainant must satisfy before he can have a decision in his favour.
Where the complainant is successful, he can have the cybersquatter’s domain
name transferred to him and/or cancelled by the NDRP.


Conclusion

Cybersquatting remains a threat to legitimate
business owners in the evolving digital age. Statistics show that WIPO handled
a record-high of 3,074 cybersquatting disputes in 2017 under the UDRP with
three industries (banking and finance, fashion, and internet and IT) accounting
for nearly one-third of all disputes. [8]


With cybersquatting now regarded as a crime
in Nigeria, it is possible that would-be cybersquatters may be discouraged from
participating in this nefarious activity. However, with there being no record
of any arrest and prosecution, only time will tell if the law will be effective
or if it may be better for a complainant to rely on the UDRP procedure which
has proven to be effective in several jurisdictions.

For extensive information on cybersquatting,
domain names, and intellectual property rights, you may contact the author of
this article at doturu@aelex.com.

[1] Cornell Law School “Legal Information Institute”
Cybersquatting

[3] Section 25(1) of the Cybercrimes Act

[4] Domain Name Wire “Google wants to take down Goggle”

[5]Domain Name Wire “Scammy Surveys Will Bring Renewed Attention
to Cybersquatting”

[6]The Economic Times, “Your spelling errors can help
typosquatters make big bucks” <//economictimes.indiatimes.com/articleshow/5884936.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst>

[7] Findlaw, “Protecting Your Intellectual Property from
Domain Name Typosquatters”

[8]World Intellectual Property Organization WIPO
Cybersquatting Cases Reach New Record in 2017
http://www.wipo.int/pressroom/en/articles/2018/article_0001.html





Partner at Aelex/IP, Franchising & Brand
Protection | Corporate & Commercial | Dispute Resolution

Paul Usoro On The Police Assault on  Mr. Karimu Olakunle

Paul Usoro On The Police Assault on Mr. Karimu Olakunle

I watched with complete horror the online video clip of the assault and battery of our colleague, Mr. Karimu Olakunle by uniformed men of the Nigeria Police Force.  I would not here descend into the facts and circumstances that brought the policemen into the Law Offices of Mr. Yomi Olawore where Mr. Olakunle was battered; those facts are the subject of on-going competent investigations sequel to the report of the incident by Mr. Olakunle to the Lagos NBA Branch Disciplinary and Ethics Committee.  We would in the circumstance await the findings of that Committee.
Whatever the circumstances were that took the policemen to Mr. Olawore’s office, however, it is wholly unacceptable and a complete abuse of the police uniform for the policemen to have so brutally descended on an unarmed Mr. Olakunle, acivilian and a lawyer, who posed no threat whatsoever to them. This brutality by policemen is totally condemnable and I am gratified that the Executives of the Lagos NBA Branch, led by the Chairman, Mr. Chukwuka Ikwuazom, will be making a formal report of the incident to the Lagos State Commissioner of Police and demanding immediate suspension of the policemen.  

The incident speaks volumes on the training of our policemen in dealing with unarmed civilians.  It also speaks to the increasing sense of invincibility by our law enforcement officers.  It could only be such a sense of invincibility that would propel uniformed policemen to act with such impunityagainst Mr. Olakunle.  And, perhaps, they have good cause to feel that way seeing as none of the previous acts of assault and brutality against our colleagues has, to my knowledge, earned the erring personnel any disciplinary action by the Nigeria Police Force.  
It is time that we put a stop to this serial abuse of lawyers and unarmed civilians by law enforcement agents using Mr. Olakunle’s incident as a peg.  We must follow through the Nigeria Police Force’s disciplinary processes against those erring policemen and ensure that it serves as a warning on other law enforcement agents like them that such conduct remains intolerable and unacceptable to the Nigerian BarAssociation.
Paul Usoro, SAN FCIArb
I stand to unify the NBA sections, Fora, etc – Paul Usoro, SAN

I stand to unify the NBA sections, Fora, etc – Paul Usoro, SAN

Leading NBA Presidential candidate, Paul Usoro was interviewed by THISDAY recently, where a range of questions were discussed. Kindly find below the full interview..

The elections are here at last. Given the challenges complained about in the last elections which eventually resulted in litigation which are still ongoing, do you have confidence in universal suffrage by electronic voting?

PU: I don’t think the problem is with electronic voting or universal suffrage per se.  The problem generally with elections is more often than not with its conduct and not the mode – electronic or manual.  The problem also is not with suffrage – universal or restricted; it is, as I’ve already stated, with the conduct of the election.  What I’m interested in knowing right now is the planned mechanics or processes for the NBA elections; it’s the mechanics that will tell us whether it’s tamper-proof or susceptible to manipulations and/or human errors.  Until we hear from the ECNBA on these processes and mechanics, I cannot really comment on the integrity of the electronic voting.

Some have said that what the NBA needs right now, is a bridge-builder President, who has the potential to unify the Bar. For some, the huge challenge is finding a unifying factor for the young, the old, Inner Bar, Outer Bar, Ethnic fora, the Sections and various interest groups within the Bar. Would you say you possess that capacity?

PU: I believe that I possess those unifying qualities, but I’ll leave you and the members of the Bar to make the final judgment.  I’ll give you pointers though.  First, I’m from the East, had my education in the West, spent (and I’m still spending) some of my practice years in the North and I’m Lagos-based.  Second, I keep my friends and my relationships over the years have not been and are not transactional; they also cut across all divides, be they regional, religious, age, fora, gender, Inner/Outer Bar, Post-Call years, etc. etc.  Third, I’m about the only candidate that has not engaged in smear campaign against other persons (be they candidates or not) and I do not permit my supporters to engage in such unwholesome conducts.  Fourth, at no time have I preached or encouraged hate and/or the divisive attitude of “us against them” – and you can see these in my Reflections publications – unlike some others who pitch young lawyers against the older ones or the Outer Bar against the Inner Bar etc. etc.  Fifth, my Reflections series and my consultations have always been issues-based without denigrating any section of the Bar and I consciously and constantly build bridges both in my conduct and utterances.  Sixth, the unifying force which I represent, shows in my support base which in various States, Branches and groups has brought together and unified persons who hitherto were in opposing camps and they’re all now working and focused on the unified objective of re-energizing the NBA with me as the President.  Seventh, I’m very accessible to everyone by phone, e-mail, text messages, social media handles, WhatsApp and even direct contacts.  These are non-exhaustive facts that should help you decide the question of whether or not I’m a unifying force for good in the Bar.  

Many have expressed the belief that, ethnic fora are no longer needed in NBA elections, for any office, and that adoption is no longer a useful factor. But, the Eastern Bar Forum of which you are a member, was said to have adopted a candidate. Despite this, other candidates from the same East are still in the race. What would be the effect of this, on the election?

PU: I should perhaps point out from the outset that I’m not a member of the Eastern Bar Forum.  I’m not registered with the Forum and I’m not alone in that regard; a large number of lawyers of Eastern Nigeria extraction are not registered with the Forum.  In my understanding, ethnic fora are voluntary pressure groups that do not attract mandatory or compulsory membership.  They cannot therefore attain or be elevated to the status of being the sole voice or even the voice for any ethnic group or region within the NBA.  Ethnic fora are also not recognized by the NBA Constitution and cannot claim to speak on behalf of the Association or any part thereof.  Adoption of candidates by ethnic fora is perhaps useful as a publicity or campaign stunt for the candidates but ought not to be the basis for excluding any qualified candidate from contesting for an NBA office.  Ultimately, being a professional body, election should be based on the qualification of the candidates and their merit for the office and not on adoption by some ethnic fora, more so, in an election by universal suffrage and with electronic voting.

In a nutshell, what is your manifesto? Why do you think Nigerian Lawyers should entrust you with their Association for the next two years? How realisable are these programmes within your two-year tenure, if you are voted in?

PU: This is a question that does not lend itself to a “nutshell” response.  I’ll therefore focus here on the reform programs which I believe the NBA, at the national level, urgently needs if it must retain its relevance not only in the larger society but even to its members.  The reforms that I propose will, at the minimum, achieve four significant goals, to wit, (a) enhance efficiency in the operations and running of the Association; (b) engender confidence and trust amongst its members (or, as some would say, win back the confidence and trust of its members); (c) transform the NBA into a sustainable institution; and (d) increase the moral equity of the NBA to enable it effectively influence required reforms in the justice subsector and remain a respected watchdog of the society.  The breadth and scope of these reforms are quite wide and extensive, and I’ve been writing on them in My Reflections series which is circulated by e-mail to all lawyers.  Are these reforms achievable in a 2-year span?  I believe so.  Take for instance, running a transparent administration in all respects, including but not limited to procurement and finance policies and management.  Nothing stops us right from Day One, from producing Quarterly Financial Statements with qualitative information that would educate and inform the members on and of the financial health of the Association.  Nothing also stops us from instituting and institutionalizing transparent internal control processes and mechanisms including procurement processes, from Day One which would plug possible leakages in the system and also, illustratively, ensure that members get their stamps and seals soon after payment rather than the current practice of late deliveries of these mandatory items to lawyers. The reforms would not be the only things I would do in the two-year timeframe of my Presidency, if voted in, but it would be a cornerstone program and would impact the NBA’s ability to reform the justice subsector and the larger Nigerian society.  I must also mention that, from Day One, we’ll introduce and enforce diversity and inclusion of every group, gender and demographics including our colleagues living with disability, in all aspects of the NBA. I will also focus on programs that will enhance the income-earning capacity of our members e.g. protecting the legal market for Nigerian lawyers and regulating the practice of law in Nigeria by non-Nigerian lawyers in a manner that does not prejudice and shut out the Nigerian lawyers.  These are issues that I’ve touched upon in My Reflections series which I request that you read and follow.

What edge would you say that you have, over the other candidates?

PU: First, I am independent and economically secure and can do the right thing for and by the Association without being hobbled by interests’ considerations, be they economic, political, social or ethnic or by godfatherism.  Second, I speak of reforms including governance principles because I’m the candidate with the most experience in and exposure to these principles given my consistent membership of boards of companies from about 2000 to date (no less than 2 simultaneous board seats in major companies at any given time within that timeframe).  Third, I’m the only one that has articulated my vision in clear, defined and auditable terms in my Reflections series which underlies my understanding of the issues and competence/ability to implement them.  Fourth, I’m the only one who has led by example in terms of attending to the welfare of my younger colleagues in the Firm that I founded in 1985 and where I work up-to-date, with more than 40 lawyers currently working in the establishment.  Fifth, I also have a record amongst the candidates of having mentored the highest number of successful legal practitioners/professionals, benchmarked from their Post-Call years.

What would be your first steps and actions, within six months of assumption of office, if you are elected?

PU: In terms of reforms, I’ve already answered this question (see my response to the question on my manifesto): I would commence the reform programs from Day One.   The reform program, it must be remembered, is vast, diverse and huge, all on its own.  I would also revive and institutionalize monthly Press briefings on the state of the Nigerian nation.  In promoting the rule of law, I would take steps to (a) protect the independence of the judiciary and prevent misguided and unwarranted assault on the institution and judicial officers; and (b) stop the assault of lawyers while carrying out their professional duties by law enforcement agents.  I will also start the process of securing the Nigerian legal market for the Nigerian lawyers and the regulation of the market-access in a manner that benefits the Nigerian practitioner and does not prejudice him.

The NBA used to be very vocal on national issues, and even in the military era, it was the voice of the masses and downtrodden. But, over the years, it has gradually lost its voice. How do you intend to bring back those noble ideals, for which the Bar was once noted for? There are so many issues that the NBA should have taken a strong stand on, but not much was heard from the Association, for instance, Government’s seeming lack of respect for the rule of law and disobedience of court orders,  incessant killings by the Herdsmen, invasion  of the Rivers State High Court by political hoodlums and so on.++++++++

PU: I agree entirely that the NBA’s voice must be heard at all times and its voice must be strong and loud on national issues, amongst others.  I’ve already committed to have monthly press briefings on national issues as the President of the NBA and will also discuss these issues at the meetings of the National Executive Committee of the Association.  Institutionalizing the monthly press briefing practice will greatly enhance the standing of the Bar particularly when that practice is coupled with the reforms that I propose, and which would greatly enhance our moral standing to speak on national issues.

What plans do you have, to improve the lot of the young Lawyers?

PU: There is no single solution to the welfare challenges of the young lawyers.  I’ve proffered a range of solutions in my Reflections series and these include institutionalized mentorship program (which, from my standpoint, is even more beneficial to the young lawyers than immediate short-term pecuniary welfare programs), enhancing the income-earning capacity of lawyers generally in a manner that translates, amongst others, into better welfare packages for junior lawyers, encouraging senior lawyers to remunerate their junior colleagues well and enlightening them on the benefits that accrue therefrom having at all times led by example in that regard.  More importantly, I’ll constantly take in suggestions and advice from all relevant stakeholders in that regard (senior lawyers as well as young lawyers), process such advice and suggestions and find ways to implement those ones that are workable. To summarize, I’ll promote a global but diversified approach in addressing the challenges of young lawyers which go beyond welfare issues and include capacity building and growth opportunities.

What role will you play in sanitising the legal profession?

PU: I will promote the review of the regulatory provisions and processes for the legal profession in a manner that meets the international best standards both in content and procedures. The review would also address misconducts that may not have been previously captured in our regulatory processes, but which may now be current and inimical to good standing.  I would also work to strengthen and make robust the disciplinary processes for the legal profession sufficient to meet the challenges of our modern era.

We wish you the best of luck in the election.