There is no point in making comprehensive provisions for the protection of various intellectual property rights without also providing a corresponding comprehensive system for enforcing the same when the rights are or about to be infringed. Therefore, an accessible, sufficient and adequate system/procedure is paramount in any worthwhile intellectual property system. Right holders must be granted means to enforce their rights just as is obtainable in other forms of tangible and intangible properties. For this reason, all intellectual property systems need an effective judicial apparatus that is empowered to deal with both civil wrongs and criminal offences whilst being presided over by adequate number of judges with the requisite experience in intellectual property right.
This paper therefore will examine the effect of Covid-19 on intellectual property and trademark issues in protecting intellectual property rights; the various enforcement mechanisms via the courts, sanctions, and remedies for infringement of intellectual property rights amongst other incidental matters.
The expression ‘Intellectual Property’ (IP) is taken to mean the legal rights which may be asserted in respect of the product of the human intellect. It is a private property right. Intellectual property law protects the creation of human mind and human intellect and it is divided into two branches namely; Industrial property law and Copyright law.
Industrial Property law protects inventions, trademarks, designs while copyright law protects literary, musical and artistic works, cinematography films, sound recording and broadcasts as well as creations in the field of neighbouring rights. These legal rights can be infringed upon when the same rights granted to the right holder are exploited by a third party without the owner’s consent or permission. Therefore, like other legal property rights, the infringements of intellectual property rights are enforceable in the court of law as well as other procedures. There are several enforcement mechanisms a right holder can employ in implimenting his/her rights. These include Alternative Dispute Resolution, Civil litigation and Criminal prosecution via courts and administrative procedure.
PROTECTION OF INTELLECTUAL PROPERTY RIGHTS:
Intellectual Property Rights (IPRs) are statutorily granted and protected. These are exclusive rights; and attached to them are the rights to exclude third parties from dealing with the protected work unless with the permission of the right holder. Under Nigerian laws, four sets of these rights are statutorily provided for, namely: copyright, industrial design, trademarks and patents.
JURISDICTION OF COURT TO ENFORCE INTELLECTUAL PROPERTY RIGHTS
The subject matter ‘jurisdiction to hear Intellectual Property cases’ are given under the Nigerian Constitution exclusively to the Federal High Court. Section 251 (1) of the Constitution of the Federal Republic of Nigeria 1999 provides that-
“Notwithstanding anything to the contrary contained in this constitution… the Federal High Court shall have and exercise exclusive jurisdiction to the exclusion of any other court in civil causes and matter arising from any Federal enactment relating to copyright, patent, designs, trademarks and passing-off, industrial designs and merchandise marks, business names, commercial and industrial monopolies, combines and trusts, standards of goods and commodities and industrial standards.”
The above statutory provision received judicial blessing from the apex court of the land in the case of AYMAN ENT. LTD v. AKUMA IND. LTD (2003) 12 NWLR (Pt. 836) 22 SC
However, the exercise of this jurisdiction is not automatic, in that where any of the matters captured in the provision of the foregoing section has not been duly registered, the Federal High Court is stripped of judicial powers to determine any liability arising from an act of infringement with respect thereto. With respect to passing off trademarks, in the case of PATKUN INDUSTRIES LIMITED v. NIGER SHOES MANUFACTURING COMPANY LTD (1988) 5 NWLR (Pt. 93) 138 SC it was held by the noble Lords that: “For the Federal High Court to have jurisdiction over a claim of passing off arising from infringement of a trade mark, the trademark allegedly infringed must have been registered. This is because the right of action of passing of under section 3 of the Trade Marks Act is statutory and is derived from that Act and not common law”.
Consequently, the Federal High Court has no jurisdiction to entertain any matter arising from infringement of unregistered trade mark or any other aspect of Intellectual Property for that matter.
EFFECT OF COVID-19 ON INTELLECTUAL PROPERTY AND TRADEMARK ISSUES:
The reach of COVID-19 has been felt across all facets of life, travel bans have been enacted, and primary schools, secondary schools and tertiary institutions are all shut down. Supplies of hand sanitizers among other items are scarce; the world of Intellectual Property has not been spared either.
Trademarks, patents, copyrights, etc. fall under the jurisdiction of the Federal High Court in Nigeria and all Federal High Court in Nigeria have been shut down. The Chief Justice of Nigeria through a circular, ordered that all Courts in Nigeria be closed in order to prevent COVID-19 from spreading. Based on this directive, the Supreme Court down to the lower Courts closed their doors to the public.
Similarly, Government Ministries and Offices in charge of patents, trademark, copyrights etc, have also taken steps to ensure the health and safety of its employees and the public in general and more so, the Federal Government has ordered a total lock down in Abuja, Lagos and Ogun state while other states are also taking the same path as the Federal Government.
There is no denying that COVID-19 has greatly affected all areas of our lives, and the intellectual property arena is no different. However, measures/steps can be put in place to help secure and enforce Intellectual Property Rights through these turbulent times.
MEASURES/STEPS THAT CAN BE PUT IN PLACE:
• Rather than total shut down on courts, limit should be placed as regards access to courts building by court staff, counsel, parties, and members of the public and media crew scheduled for hearings.
• Filing of processes can be done electronically, for example, pleadings filed electronically should be accepted at all levels, and some judges should be put in place to see to such cases in such a period. Avenue should be created for Attorneys to be able to contact court officers, judges and the like, as well as opposing counsel to advocate on behalf of their clients.
• Machineries should also be put in place to see if trademarks trials can be conducted remotely via telephone or video conference.
• Government ministries and offices in charge of patents, trademarks, copyrights etc; while closed should still be assisting people via telephone, email and online services.
• Patents, trademarks, copyrights offices can also take additional steps for patentees and trademark owners by attending to them via video conferences thereby postponing oral hearings for the time been.
Unless the above stated measures/steps are put in place, a party whose intellectual property right has been infringed upon remains helpless and will have to wait for the doors of the government ministries, offices in charge of patents, trademarks, copyrights etc. and that of the court to be opened before such infringement can be looked upon.
Paper by Oyetola Muyiwa Atoyebi, SAN.
Mr. Oyetola Muyiwa Atoyebi, SAN is one of the most notable professional Nigerian youth, who has distinguished himself in his professional sphere within the country and internationally. He is the youngest in the history of Nigeria to be elevated to the rank of a Senior Advocate of Nigeria. At age 34, he was conferred with the prestigious rank in September, 2019. Mr. O.M. Atoyebi, SAN can be characterized as a diligent, persistent, resourceful, reliable and humble individual who presents a charismatic and structured approach to solving problems and also an unwavering commitment to achieving client’s goals. His hard work and dedication to his client’s objectives sets him apart from his peers. As the Managing Partner of O.M. Atoyebi, SAN and Partners, also known as OMAPLEX Law Firm, he is the team leader of the Emerging Areas of Practice of the Firm and one of the leading Senior Advocates of Nigeria in Information Technology, Cyber Security, Fintech and Artificial Intelligence (AI). He has a track record of being diligent and he ensures that the same drive and zeal is put into all matters handled by the firm. He is also an avid golfer.