Introduction
Over the last three years, there
has been a rapid rise in the number of Financial Technology (“Fintech”)
companies in Nigeria. Within the last three years the number of Fintech
companies in Nigeria has grown to over 60.[2] The growth in recent years is mainly
due to the introduction of modern and convenient payment services which is a
much-needed improvement to customer experience in the digital space.
has been a rapid rise in the number of Financial Technology (“Fintech”)
companies in Nigeria. Within the last three years the number of Fintech
companies in Nigeria has grown to over 60.[2] The growth in recent years is mainly
due to the introduction of modern and convenient payment services which is a
much-needed improvement to customer experience in the digital space.
From transaction payments to
lending, to insurance, virtual currencies and Blockchain, Fintech services are
redefining the way businesses and consumers carry out routine transactions. The
increasing adoption of these trends is positioning Nigeria as an attractive
market worldwide.[3] The industry has also experienced a
rise in its Investment opportunities, for example, Paystack and Piggybank.ng,
(two prominent Fintech companies in Nigeria) recently received both foreign and
local investments worth over $9 million.[4]
lending, to insurance, virtual currencies and Blockchain, Fintech services are
redefining the way businesses and consumers carry out routine transactions. The
increasing adoption of these trends is positioning Nigeria as an attractive
market worldwide.[3] The industry has also experienced a
rise in its Investment opportunities, for example, Paystack and Piggybank.ng,
(two prominent Fintech companies in Nigeria) recently received both foreign and
local investments worth over $9 million.[4]
There are various intellectual
property (IP) rights associated with Fintech and like every other business it
is essential that Fintech companies adopt appropriate IP strategies to protect
their core innovations. Having a good IP portfolio does not only assist in
protecting technical innovations, it also helps to boost the image and value of
the company which in turn plays a critical role in attracting investors.[5] Some of the various IP aspects of
Fintech companies are briefly discussed below:
property (IP) rights associated with Fintech and like every other business it
is essential that Fintech companies adopt appropriate IP strategies to protect
their core innovations. Having a good IP portfolio does not only assist in
protecting technical innovations, it also helps to boost the image and value of
the company which in turn plays a critical role in attracting investors.[5] Some of the various IP aspects of
Fintech companies are briefly discussed below:
- Patent
A Patent is an exclusive monopoly
granted by a country to an inventor for his or her ingenuity/invention for a
limited period of time usually 20 years.[6] Patents are considered to be one of
the core assets of technology related companies because it enables the company
to exploit the patented invention exclusively within the stipulated time before
releasing to the public domain and it precludes another person(s) from
exploiting the invention without the inventor’s consent or authorization.
granted by a country to an inventor for his or her ingenuity/invention for a
limited period of time usually 20 years.[6] Patents are considered to be one of
the core assets of technology related companies because it enables the company
to exploit the patented invention exclusively within the stipulated time before
releasing to the public domain and it precludes another person(s) from
exploiting the invention without the inventor’s consent or authorization.
Fintech companies often utilize
patent rights to protect the core of their inventions. It can be used to
protect devices such as ATM,[7] POS,[8] MPOS,[9] tokens, etc. as well as the
inventive steps or methods involved in the invention as well as the computer
programmes that drive these innovations.[10]
patent rights to protect the core of their inventions. It can be used to
protect devices such as ATM,[7] POS,[8] MPOS,[9] tokens, etc. as well as the
inventive steps or methods involved in the invention as well as the computer
programmes that drive these innovations.[10]
One of the major benefits of
patenting one’s invention is that it helps to create market monopoly over that
invention thereby providing the company the avenue to build its brand, attract
customer confidence in the product and simultaneously increases the income and
profit margins of the company. It also helps to boost a company’s profile,
making it more attractive to investors.
patenting one’s invention is that it helps to create market monopoly over that
invention thereby providing the company the avenue to build its brand, attract
customer confidence in the product and simultaneously increases the income and
profit margins of the company. It also helps to boost a company’s profile,
making it more attractive to investors.
In Nigeria, for an invention to
be patentable it must be new or an improvement on an existing invention;
consist of an inventive step; must be capable of industrial application and
must not be specifically excluded under the law.[11] To obtain a patent, an application
will be submitted to the registrar of the patent registry together with the
prescribed fee. Upon careful examination of the application, if the registrar
is satisfied that the statutory requirements are met, the patent over that
invention will be granted. Once granted, the patent holder can enforce its
rights against infringers.[12]
be patentable it must be new or an improvement on an existing invention;
consist of an inventive step; must be capable of industrial application and
must not be specifically excluded under the law.[11] To obtain a patent, an application
will be submitted to the registrar of the patent registry together with the
prescribed fee. Upon careful examination of the application, if the registrar
is satisfied that the statutory requirements are met, the patent over that
invention will be granted. Once granted, the patent holder can enforce its
rights against infringers.[12]
- Copyright
Typically, computer programs and
software are categorized and protected under copyright law.[13] Software such as computer codes,
mobile banking applications, audio and visual guides, application programming
interface structures etc., are some of the copyright assets of FinTech
companies. Copyright over these computer programs subsists automatically the
moment they are created and require no form of registration before it is
enforceable. However, owners of copyright may take further steps to lodge their
copyright with the Nigerian Copyright Commission (NCC) under its
Notification/Depository scheme.[14] This serves the purpose of bringing
the existence of the work to the notice of the NCC and it also serves as proof
of ownership in court when there are competing interests.
software are categorized and protected under copyright law.[13] Software such as computer codes,
mobile banking applications, audio and visual guides, application programming
interface structures etc., are some of the copyright assets of FinTech
companies. Copyright over these computer programs subsists automatically the
moment they are created and require no form of registration before it is
enforceable. However, owners of copyright may take further steps to lodge their
copyright with the Nigerian Copyright Commission (NCC) under its
Notification/Depository scheme.[14] This serves the purpose of bringing
the existence of the work to the notice of the NCC and it also serves as proof
of ownership in court when there are competing interests.
Furthermore, in order to better
protect the copyright over their works, Fintech companies are advised to
inculcate the practice of placing digital locks on copies of their works to
provide additional security. Circumvention of digital locks is an offence in
some jurisdictions and may provide relief against unauthorized parties.[15] The Nigerian Draft Copyright Bill
2015 also prohibits circumvention of technological protection measures
protecting a work and entitles the aggrieved owner to reliefs such as damages,
injunction and accounts for profit. The companies should take more caution in
drafting the provisions of its contracts with developers especially when
incorporating third-party copyright, as this may affect the ownership of the
technology and freedom to operate.[16]
protect the copyright over their works, Fintech companies are advised to
inculcate the practice of placing digital locks on copies of their works to
provide additional security. Circumvention of digital locks is an offence in
some jurisdictions and may provide relief against unauthorized parties.[15] The Nigerian Draft Copyright Bill
2015 also prohibits circumvention of technological protection measures
protecting a work and entitles the aggrieved owner to reliefs such as damages,
injunction and accounts for profit. The companies should take more caution in
drafting the provisions of its contracts with developers especially when
incorporating third-party copyright, as this may affect the ownership of the
technology and freedom to operate.[16]
- Trademark
The word mark, logos, domain
names, icons etc., which forms the brand of a business should be registered and
protected as trademarks because a good brand helps to distinguish a Fintech
company from its competitors. Registration of the trademark of a company
enables the company to successfully bring an infringement action against its
competitors for passing off or for damaging or diluting the goodwill and
reputation of the company.[17]
names, icons etc., which forms the brand of a business should be registered and
protected as trademarks because a good brand helps to distinguish a Fintech
company from its competitors. Registration of the trademark of a company
enables the company to successfully bring an infringement action against its
competitors for passing off or for damaging or diluting the goodwill and
reputation of the company.[17]
- Trade Secrets
Trade secrets are confidential
business information that have economic or commercial value. Confidential
backend server processes, algorithms, business methods, ideas, client details,
code and secret recipes are some examples of trade secrets of a Fintech
company. It is pertinent that a company takes reasonable and deliberate actions
to protect its trade secrets especially those which gives it economic advantage
over competitors.
business information that have economic or commercial value. Confidential
backend server processes, algorithms, business methods, ideas, client details,
code and secret recipes are some examples of trade secrets of a Fintech
company. It is pertinent that a company takes reasonable and deliberate actions
to protect its trade secrets especially those which gives it economic advantage
over competitors.
Unlike other IP assets, trade
secrets can offer perpetual protection so long as the secrecy is preserved,
because the value of a trade secret is in its secrecy, and once it is revealed
to the public or independently discovered by competitors, the right is lost.
secrets can offer perpetual protection so long as the secrecy is preserved,
because the value of a trade secret is in its secrecy, and once it is revealed
to the public or independently discovered by competitors, the right is lost.
A Fintech company can protect its
trade secrets by entering into Non-Disclosure Agreements (NDAs) with potential
clients, contractors or investors before providing them with any confidential
information. It can also have confidentiality, exclusivity, non-competition /
non-solicitation and intellectual property clauses in the agreements with its
employees. Likewise, the company can implement an enforceable data security
policy which will among other things restrict access to vital business
information to a need-to-know basis.
trade secrets by entering into Non-Disclosure Agreements (NDAs) with potential
clients, contractors or investors before providing them with any confidential
information. It can also have confidentiality, exclusivity, non-competition /
non-solicitation and intellectual property clauses in the agreements with its
employees. Likewise, the company can implement an enforceable data security
policy which will among other things restrict access to vital business
information to a need-to-know basis.
- Industrial Designs
Industrial designs refer to the
physical/aesthetic outlook of a product offered by a company. The designs on
electronic cards, computer or machine interfaces are also protectable IP assets
of the Fintech companies. Industrial Designs may also contribute to the
distinctiveness of the brand.
physical/aesthetic outlook of a product offered by a company. The designs on
electronic cards, computer or machine interfaces are also protectable IP assets
of the Fintech companies. Industrial Designs may also contribute to the
distinctiveness of the brand.
Conclusion
Intellectual property forms the
bulk of the value of any business and is recognized as the most important asset
of a business.[18] It is the foundation for the market
dominance and continuing profitability of leading corporations.[19] Fintech
companies that desire to expand and increase income, market visibility,
clientele and investment portfolio must endeavor to manage and protect their IP
portfolio as a form of business strategy because IP increases the
competitiveness of a company and in turn affords it both economic and social
advantages over its competitors.
bulk of the value of any business and is recognized as the most important asset
of a business.[18] It is the foundation for the market
dominance and continuing profitability of leading corporations.[19] Fintech
companies that desire to expand and increase income, market visibility,
clientele and investment portfolio must endeavor to manage and protect their IP
portfolio as a form of business strategy because IP increases the
competitiveness of a company and in turn affords it both economic and social
advantages over its competitors.
The licensing and assignment for
these IP rights to third parties will also provide a significant and valuable
income stream. With the constant rise in M&A transactions in the Fintech
space, having a strong IP portfolio increases the value of a firm when it is
being evaluated during a potential merger or acquisition.[20] Therefore, in addition to the
protection accorded to the tangible assets and technical financial services of
fintech, adequate attention must equally be directed towards protecting the
intellectual property assets of the company. A company can adopt either one or
a combination of the above-mentioned forms of IP protection for its business.
these IP rights to third parties will also provide a significant and valuable
income stream. With the constant rise in M&A transactions in the Fintech
space, having a strong IP portfolio increases the value of a firm when it is
being evaluated during a potential merger or acquisition.[20] Therefore, in addition to the
protection accorded to the tangible assets and technical financial services of
fintech, adequate attention must equally be directed towards protecting the
intellectual property assets of the company. A company can adopt either one or
a combination of the above-mentioned forms of IP protection for its business.
For further information on this
article and area of law, please contact
article and area of law, please contact
Oluwafunmilayo Mayowa at:
S. P. A. Ajibade & Co., Lagos by telephone
S. P. A. Ajibade & Co., Lagos by telephone
(+234 1 +234.810.952.8293
or 234.12703009;
14605091; 14605092)
or 234.12703009;
14605091; 14605092)
[2]
Medici, “56 Fintech Companies in Nigeria Enabling Inclusive Growth” available
at: https://gomedici.com/56-fintech-companies-nigeria-extending-access-to-financial-products-for-inclusive-growth accessed
2nd November 2019.
Medici, “56 Fintech Companies in Nigeria Enabling Inclusive Growth” available
at: https://gomedici.com/56-fintech-companies-nigeria-extending-access-to-financial-products-for-inclusive-growth accessed
2nd November 2019.
[3] Boye
Ademola, “Fintech in Nigeria” available at: https://assets.kpmg/content/dam/kpmg/ng/pdf/ng-fintech-in-nigeria-understanding-the-value-proposition.pdf accessed
29th October 2019.
Ademola, “Fintech in Nigeria” available at: https://assets.kpmg/content/dam/kpmg/ng/pdf/ng-fintech-in-nigeria-understanding-the-value-proposition.pdf accessed
29th October 2019.
[4] Emmanuel Benson, “Fintech
companies to watch out for in 2019” available at: https://nairametrics.com/2019/01/22/fintech-companies-to-watch-for-in-2019/
accessed 4th November 2019.
companies to watch out for in 2019” available at: https://nairametrics.com/2019/01/22/fintech-companies-to-watch-for-in-2019/
accessed 4th November 2019.
https://www.finance-monthly.com/2017/07/intellectual-property-how-to-protect-your-fintech-innovation/ accessed
28th October 2019.
28th October 2019.
[7] Yetunde Okojie and
Oluwasolape Owoyemi, “How do I Register an Invention in Nigeria? Substantive
and Procedural Requirements for Registration of an Invention” available
at: http://www.spaajibade.com/resources/wp-content/uploads/2019/01/How-do-I-Register-an-Invention-in-Nigeria-by-Yetunde-Okojie-and-Oluwasolape-Owoyemi.pdf accessed
21st November, 2019.
Oluwasolape Owoyemi, “How do I Register an Invention in Nigeria? Substantive
and Procedural Requirements for Registration of an Invention” available
at: http://www.spaajibade.com/resources/wp-content/uploads/2019/01/How-do-I-Register-an-Invention-in-Nigeria-by-Yetunde-Okojie-and-Oluwasolape-Owoyemi.pdf accessed
21st November, 2019.
[8] Ibid
[9] Ibid
[10] The Canadian
Federal Court of Appeal in Amazon.com, Inc. v. Canada (Attorney General) 2011
FCA 328, held that Amazon.com “one-click” buy interface feature is patentable.
Federal Court of Appeal in Amazon.com, Inc. v. Canada (Attorney General) 2011
FCA 328, held that Amazon.com “one-click” buy interface feature is patentable.
[14] Federal Ministry of
Communications AND Digital Economy, “NCC unveils E-Registration Platform to
Check
Communications AND Digital Economy, “NCC unveils E-Registration Platform to
Check
Piracy” available at https://www.commtech.gov.ng/news-and-media/daily-news-report/118-ncc-unveils-
e-registration-platform-to-check-piracy.html
accessed 21st November 2019.
accessed 21st November 2019.
https://www.financierworldwide.com/intellectual-property-strategy-for-fintech#.XbxSDZpKjIU accessed
27th October 2019.
27th October 2019.
[16] Ibid.
[17] John Onyido, “Understanding
Trademarks”, Presentation to the IP LAW CLUB Obafemi Awolowo University”
Trademarks”, Presentation to the IP LAW CLUB Obafemi Awolowo University”
2018, available at: http://www.spaajibade.com/resources/wp-content/uploads/2018/09/
Understanding – TrademarksIP-Club-Presentation-Obafemi-Awolowo-University-updated.pdf,
accessed 21st November 2019.
Understanding – TrademarksIP-Club-Presentation-Obafemi-Awolowo-University-updated.pdf,
accessed 21st November 2019.
[18] Nexsen Pruet, “Intellectual
property is 80% of the value of a business” available
at: https://www.lexology.com/library/detail.aspx?g=6f7dd161-e101-4809-9cb6-af37b853aae8 accessed
27th October 2019.
property is 80% of the value of a business” available
at: https://www.lexology.com/library/detail.aspx?g=6f7dd161-e101-4809-9cb6-af37b853aae8 accessed
27th October 2019.
[19] WIPO, “The
value of Intellectual Property, Intangible Assets and Goodwill” available
at: https://www.wipo.int/sme/en/documents/value_ip_intangible_assets_fulltext.html accessed
27th October 2019.
value of Intellectual Property, Intangible Assets and Goodwill” available
at: https://www.wipo.int/sme/en/documents/value_ip_intangible_assets_fulltext.html accessed
27th October 2019.
[20] Yetunde Okojie, “Importance of
IP Due Diligence in Mergers and Acquisition” available at: http://www.spaajibade.com/resources/wp-content/uploads/2018/09/THE-IMPORTANCE-OF-IP-DUE-DILIGENCE-IN-MERGERS-AND-ACQUISITION-ARTICLE-Okojie.pdf accessed
20th November 2019.
IP Due Diligence in Mergers and Acquisition” available at: http://www.spaajibade.com/resources/wp-content/uploads/2018/09/THE-IMPORTANCE-OF-IP-DUE-DILIGENCE-IN-MERGERS-AND-ACQUISITION-ARTICLE-Okojie.pdf accessed
20th November 2019.