Abstract
Nigeria is an emerging
country and slowly taking its place in the comity of Nations. From Oil and Gas
to Information and Communications Technology, the country is gradually carving
a niche for itself as the next emerging destination after China for foreign
direct investments. However the country still suffers from years of neglect in
protection of investors rights partly because for many years it was a pariah. This
paper seeks to proffer a frame work for growth and development in Nigeria
through technology innovation and industrial property protection.
INTRODUCTION
With a
population exceeding 120 million people, Nigeria represents by far the largest
single market for the distribution goods and services in Africa. As a
developing economy with a modest industrial base, her economy has remained
largely dependent on imports. Consumer goods, machinery and industrial items are
imported on a large scale from all over the world. Conversely, goods
manufactured in Nigeria are exported, on a relatively small scale, to other
countries, particularly within the West African Sub-region.[1]
Technology and knowledge have played an important
role in economic growth of major world economies like the United Kingdom, United
State of America and emerging economies like the BRIC countries i.e. Brazil,
Russia, India and China.
Industrial property through globalization and
technological innovation has come to reveal an enticing allure in corporate
strategy affecting company ratings. Therefore, it is safe to say a country with
higher rate of technological growth and improved industrial property protection
would experience a higher standard of living than those of countries without
much growth.
It should be noted that Industrial property
protection significantly influences the appreciation in value and the
accumulation in quantity of human capital and technological change. For example
the growth in patent filing is associated with the growth of knowledge and
patent-related statistics can act as an indicator of the strength or weakness
of a country's economy.
The influence of Industrial Property protection
can also be said to have been reflected in the increasing contribution in the
high technology and knowledge-intensive industries. For instance there is now
the inclination of firms to patent their inventions, sustain an aesthetic
product design and maintain a high trademark value. However, this has increased
worldwide which includes some developing countries.
The National Office of Industrial Property (NOIP)
Act of 1979 set out requirements for companies to register any contract
involving the right to use trademarks or patented inventions or covering the
supply of any form of technical assistance. This includes technical expertise
in the form of plans, diagrams, operating manuals or detailed engineering
drawings; plant and machinery; and operating staff, managerial assistance or
personnel training.
The National Office for Technology Acquisition and
Promotion (NOTAP), successor to NOIP, approves management contracts and
technical-service agreements covering training, research and the transfer of
technical know-how for all industries, including manufacturing, engineering and
agriculture. According to central-bank guidelines, a maximum of 5% of project
cost is now allowed for consulting fees, but this is limited to projects with
very high technology content for which indigenous expertise is not available. NOTAP
reports that it licensed more than 3,000 patent-rights agreements as at March
2010 between Nigerian enterprises and foreign companies across all sectors. It
registered a total of 1,237 technology transfer agreements in 1999–2009, the
largest amount in the services sector, followed by solid mineral and chemical,
and engineering sectors.[2]
According to Goldman Sachs a leading global
investment bank, securities and investment management firm, Nigeria has been
projected to be amongst the Next Eleven (N-11) countries the world should watch
out for as having a high potential of becoming the world's largest economies
along with the BRICs countries (Brazil, Russia, India and China).[3]
This will rapidly be achieved if much weight is thrown to Industrial Property
right protection and technological development.
INDUSTRIAL PROPERTY PROTECTION IN NIGERIA
Despite the seemingly intractable
socio-political problems compounding Nigeria’s ascension to greatness, one can
conveniently say that the past decades have brought about greater emphasis in
establishing a self-sustaining economy through technological innovation and
industrial property protection. One of the fallouts of this consciousness is
the development of intellectual property law practice.[4]
Though there are no available statistics, there
is ample evidence suggesting the fact that Intellectual Property practice is on
the increase. It was perhaps in recognition of this development that as far
back as in 1988 the then Attorney General of the Federation Justice Mohammed Bello
directed the Nigerian Law Reform Commission to undertake a review and reform of
Industrial Property Laws in Nigeria. The end result of this enterprise is the
long awaited Industrial Property Act, which is now being re-tailored to comply
with the provisions of the Agreement on Trade-related Aspects of Intellectual Property
Rights (TRIPS).[5]
In comparing the practice of Intellectual
Property in Nigeria with the practice in other countries of the world, it is
imperative to note that Nigeria is still very much reliant on the English Laws.
For instance the applicable Trademarks Act of 1965 in Nigeria was fashioned
after the English Trademarks Act of 1938.
These laws have been overtaken by modern
technological and economical advancement. Even the United Kingdom Trademarks
Act over the years has been amended and is presently being regulated by the
English Trademarks Act 1994.
As Nigeria advances industrially, there is the
need to update our laws to address the present lacuna in our legislation. For
instance, there should be recognition and incorporation of the registrability
of smell, sound and geographical indication into our laws.[6]
Industrial Property is mainly about innovations
and the protection of property rights mechanisms, through which Industrial Property
is being administered in Nigeria and this may be through the Courts, Registry
and Copyright Commission.
The Federal Government of Nigeria approved the
registration of service marks with effect from 19th March 2007.
However, this directive is yet to be published in the official gazette. It is
worthy of note that service marks are being filed and in the last two
publications of the Trademarks Journal, service marks were advertised.[7]
Another major and far reaching step taken by the
Nigerian government in the area of Industrial Property development was the move
by the Federal Government of Nigeria to establish Industrial Property
Commission. The Industrial Property Commission, when it becomes fully
operational, will ensure the protection of industrial property rights such as
inventions, industrial design and trade marks, among other things[8].
The Minister of Commerce and Industry, Senator
Jubril Martins-Kuye, stated this while delivering a speech to mark the World
Intellectual Property Day in Abuja that “Innovative
technologies are creating a global society. The ministry has a strategic plan
of creating awareness in order to bring the message of intellectual property to
the doorstep of every Nigerian... The Federal Government is committed to the
establishment of an effective, viable and modern Industrial Property Commission
and its immediate take-off.”
Also, the Director General, World Intellectual
Property Organisation, Mr. Francis Gurry said, “The innovation process is about the introduction of new things and new
ways of doing something such as new discoveries or improvement on the state of
the art. This process transcends every facet of our lives and is the creation
of the human mind which is quantified into valuable assets which are translated
into wealth.”[9]
In a bid to
enhance Industrial Property protection and technology innovation and transfer,
NOTAP has established twenty-three (23) Intellectual Property and Technology
Transfer Offices (IPTTOs) in some Nigerian Universities, Research Institutes
and Polytechnics with the aim of ensuring that R&D activities are
demand-driven, thereby facilitating their being exploited commercially and
transformed into a marketable product or system. Each IPTTO has been adequately
equipped to provide the requisite support structures for the research community
where it is located and various capacity building programmes were carried out
in collaboration with World Intellectual Property Organist ion (WIPO), Geneva.[10]
A.
Intellectual Property
Intellectual property refers to creations
of the mind: inventions, literary and artistic works, and symbols, names,
images, and designs used in commerce.[11]
Intellectual Property (IP), in the broad sense
means the legal right
which results from intellectual activity in the industrial, scientific,
literary and artistic fields. Therefore, IP includes works of art or music, confidential information
generated or maintained by academic and research centres, research
findings, organisms,
cells, viruses/phage’s, DNA sequences, explants, other biological materials,
chemical compounds, crystallographic coordinates and even dissertations.
Generally, IP can be classified into industrial property and copyrights.
Industrial Property which is the major concern of this paper includes patents
(a legal document granting an exclusive right to an invention), trade marks
(legally protected signs for identifying certain goods or services), new
variety of an organism (mainly of microorganisms and their products), utility
model (regarded as “lesser patent” for inventions that do not have the full
requirements for patent), industrial designs (embedded in industrial products
and hand crafts), trade secrets/undisclosed information (confidential data or
information that can only be disclosed or shared under the terms of a
confidential agreement), know-how (actual human technical skills derived from
working experience), geographical indicators (that tell buyers that a product
is produced in a particular location that carries certain desirable
characteristics) and repression of unfair competition.[12]
B.
Industrial Property
Industrial property refers to patents, trade marks,
trade names, geographical indications (indications of source or appellations of
origin), utility models, industrial designs, and the repression of unfair
competition.[13]
Industrial Property is the
creative work that has economic value and is protected by law[14].
Industrial property laws reward the creators of most types of industrial
property (e.g. Patent, Trade mark and Industrial design), by preventing others
from copying, performing, or distributing those works without permission.
C. Trademark
A trademark is a distinctive name, sign
or logo which uniquely identifies the source of goods and services. The primary
aim of the Trademarks Law is to ensure that no-one uses a trademark of another
which is similar or identical as to cause confusion in the course of trade in
relation to the goods and / or services in which it is registered.
In other
word, a trade mark may be defined as a word, phrase, logo, or other graphic
symbol used by a manufacturer or seller to distinguish its product or products
from those of others. The main purpose is to guarantee a product’s genuineness.
In effect, the trade mark is the commercial substitute for one’s signature.
D. Patent
A patent is a right granted to anyone who
invents any new and useful process or fundamentally impresses an existing
process. In order to protect an invention it must be novel or essentially
better in some way than what was previously made, or a better way of making it.
In its simplest terms a patent is an agreement
between an inventor and the public, where for a full public disclosure of the
invention the inventor is granted the right for a fixed period of time to
exclude others from making, using, or selling the defined invention. It is a
limited monopoly designed not primarily to reward the inventor (this may or may
not follow), but to encourage a public disclosure so that after the monopoly
expires, the public is free to take unrestricted advantage of the invention.[15]
In my opinion and based on some further research
that i have carried out i believe that the monopoly granted for a fixed time is
designed primarily for two purposes:
a) To reward the
inventor for his invention; and
b) To encourage
franchising and public participation, which will lead to a reduction of price,
availability of the product and a possible improvement of the product.
E. Industrial Design
Industrial
design is the ornamental or aesthetic aspect of a useful article which consists
of the shape, pattern and / or colour of the article and must appeal to the
eye. It could simply be said to be a combination of lines or colours or both
and any three dimensional form. Furthermore,
it may be defined as the registration of the outer appearance of an article (such
as a table, cutlery and in a fabric design, a can or a bottle).
RELATIONSHIP AMONG INDUSTRIAL PROPERTY COMPONENTS
The various components of Industrial Property
are independent on their own as mentioned earlier and situations may arise
where an overlap may exist among them. For instance a single product may have
more than one type of industrial property. Example, in a refrigerator,
v A trademark can exist
herein, protecting the name and logo of the refrigerator's manufacturer e.g.
thermocool, whirlpool, Frigidaire etc.
v The parts and
processes of the refrigerator that keep food cold may be patented
v The Design of the
refrigerator (the style and appearance of its drawers, shelves, handles, etc)
can be protected by Industrial Design.
The main purpose of industrial property protection
is to provide incentives for people to produce scientific and creative works
that benefit society at large. Industrial property is usually protected by law
from the moment of creation but in some circumstances it may require the
creator to request a specific grant of rights from a government agency before
they can be protected by law. One are in which all industrial property
components share a similar characteristic is in the area of government
protection for a limited number of years. Also all industrial property
components have a form of registration that it must undergo to ascertain its
ownership. The main essence of industrial property components is to boost
economic growth and development.[16]
ECONOMIC BENEFITS OF INDUSTRIAL PROPERTY PROTECTION IN NIGERIA
The economic
benefits of Industrial Property Protection are innumerable and over the years
it has proven to be a viable tool for economic growth in developed countries.
Some of these benefits are enumerated below.
v It has the
potential causative to a country's efforts to attract Foreign Direct Investment
(FDI) and provide the necessary conditions for transfer of technology.
v It
facilitates transfer and promotion of technology and innovation such as patent
licensing through an active use of patent information.
v Industrial
property protection plays a catalytic role in inspiring research and
development in a country.
v Trademarks
are important component of the Industrial Property system which has strong
influence on private investment and marketing decisions as they are intangible
capital.
v The
commercialization of Industrial Property is a significant stimulus to economic
growth and development.
v Industrial property has also helped the
living conditions of people with major emphasis on patent which deals mainly
with inventions.
IMPEDIMENTS TO THE DEVELOPMENT OF INDUSTRIAL PROPERTY PROTECTION IN NIGERIA
Notwithstanding the gradual growth witnessed in
respect to the protection of Industrial Property, there are still some
challenges faced in this field. These include:
v INADEQUATE
SKILLS AND PERSONNEL
The
administration of Industrial Property Protection in Sub-Sahara Africa is
incapacitated by inadequate skills. Persons involved in its administration are
usually not experts. For instance in Nigeria, patent examiners are not experts
in the field of science and technology, therefore the grant of a patent is as
to form only, there is no substantive examination.
v INFRASTRUCTURE
AND INFORMATION TECHNOLOGY
The infrastructure for operation of Industrial
Property in Nigeria is still largely undeveloped. Information Technology is
also in the early level of development thus not encouraging proper research by
Intellectual Property experts, students and scholars. Filing of applications is
always slow; the process of grant of could take years due to the limited
infrastructural facilities at the Trade mark and Patent Registries. These
infrastructure deficiencies have not encouraged business development in Nigeria
with bottlenecks in passage of goods and services between borders in the
region.
v INADEQUACY OF
STATUTORY PROVISIONS
Under
Nigerian law[17],
eligibility for registration of industrial property, especially Trademark is
more restrictive than the position in other jurisdictions. Registerable marks
under Nigerian law are presently defined only in relation to goods. This
definition is detrimental to service-oriented businesses.[18] In
other jurisdictions, like the United Kingdom, Trademark is defined as any sign
capable of distinguishing goods and services. Under Nigerian law, Trademark is
defined thus:
“Trademark means, except in relation to a certification
trademark, a mark used or proposed to be used in relation to goods for
the purpose of indicating or so as to indicate a connection in the course of
Trade between the goods and some person having the right either as a
proprietor or registered user to use the mark whether with or without any
indication of the identity of that person and means in relation to a
certification trademark a mark registered or deemed to have been registered
under Section 43 of this Act.”
In AKESAN (NIG.) LTD V UBN
LTD. Suit No. FHC/L/95/81 (unreported) it was held inter alia that the
Plaintiff’s registration of a white stallion for electrical goods was not
infringed by the defendant’s use of a similar mark for its banking services. It
is possible that if service marks were registrable under Nigerian law, the
defendant would have registered its logo as a service mark.
There is thus a need to expand the meaning of a mark to include
symbols, pseudonyms, presentation or packaging of goods and services and
shapes. Such an expansion would give applicants for Trademark registration
broader protection. Some of these inadequacies could be rectified by some
International Laws such as the Paris Convention for the Protection of
Industrial Property 1883 as revised in Lisbon in 1953, which allows for
registration of service marks. However, because of the provision of Section
12(1) of the 1999 Constitution, which provides that “no treaty between the Federation and any other Country shall have the
force of Law except to the extent to which such treaty has been enacted into
law by the National Assembly”, international law or convention cannot be
invoked to fill the lacunae in our law.
Furthermore non-registration of a mark under Nigerian Law leaves
the mark unprotected. This problem may be solved by inserting a provision for
the recognition of “well known marks” which will enjoy a measure of protection
independent of registration.[19]
v DEVELOPMENT
IN LAW
It
is quite disappointing that after decades of independence most countries in the
sub-Sahara Africa have not made any significant change in their Intellectual Property
laws, the laws have remained outdated. Some of the major problems facing development in Intellectual Property law in Nigeria are specifically enumerated below.
v Lack of
awareness
v Passive
involvement of Government in Intellectual Property Legislations
v Most
innovations are not registered
v Counterfeiting
Act performed by non owners of Intellectual Property Rights
v Non
compliance with Intellectual Property Treaties such as TRIPS, PCT (Patent
Co-operation Treaty). According to the provision of Section 12 of the
Constitution of Federal Republic of Nigeria Which states that:
"No Treaty between the federation and any
other country shall have the face of law except to the extent to which such
treaty has been enacted into law by the National assembly".
The former Minister of Commerce and Industry
Chief Achike Udenwa said that in spite of the long existence of the department,
the Industrial Property system had not developed much in Nigeria. "The
Trademark, Patent and Design Department has not been able to meet with the fast
pace of technological development in the world and because of this, Nigeria is
being left behind in the global arena of fast developing Industrial Property
systems."
v ADMINISTRATIVE
PROBLEMS
The administration of trademarks is not without problems. Some
of these problems include:
v Files are sometimes lost or misplaced in the Registry.
v Some of the staff of the registry are unskilled and untrained.
v The facilities in the Registry are poor.
v The Trademarks journal is not published regularly.
v Again there is need to computerize the Trademarks Registry and
establish a network that will co-ordinate the activities of the associated
ministries that impact upon its operations.
However, a joint action by intellectual property practitioners
in Nigeria have resulted in the formation of a pressure group aimed at ensuring
the improvement of services rendered by the Trademarks Registry. In recent
times, the publication of the Journal has become more frequent. Also, a
stakeholders forum, aimed at providing the Registry with an opportunity of
discussing these problems and working out a joint solution for them is in
place. It is hoped that the dividends from these efforts will be felt in the
not too distant future.[20]
OBSERVATIONS AND RECOMMENDATIONS
Having examined the challenges encountered by
Intellectual Property in Nigeria it is paramount to recommend a solution for
awareness and development of Intellectual Property in Nigeria in other to
withstand other countries and be on the same pedestal with them.
For proper economic, social and cultural
development to occur, Intellectual Property must play a fundamental role. The
way forward includes:
v There is the
need to update our laws and incorporate the protection of Industrial Property
rights on smell and sound as already practiced in the major world economies. It
is indeed a laudable achievement that service marks are now being registrable
in Nigeria, however in order to support this accomplishment there is the need
to publish same in the official gazette.
v Improvements
on awareness as to the importance of Industrial Property in Nigeria. Through
advertisement, seminars and symposium in Technical schools, Institution of
higher learning, companies, and Industries where most innovations are carried
out.
v Financing of
university education on Intellectual property and provision of Information
Technology facilities to aid learning culture, research and application of
technical know-how.
v Also, it is
only through effective administration and enforcement of industrial property
rights that innovators and investors are assured of their investments, and it
would spur research and development.
v Continuous
education for registry personnel and Intensive and regular training of
Intellectual Property personnel and practitioners to keep abreast of current
developments in contemporary Intellectual Property Rights. Appointment of IP
experts and professionals into offices and parastatals for the implementation
of policies on Industrial Property Rights.
v Improvement
on Government Policies especially in commercialization of invention where
financial difficulty is encountered.
v A thorough
review of Patent and Trademark laws which are archaic and a lot of deficiencies
are contained, thereby an adequate legal infrastructure and progressive policies
on protection of Industrial Property would be relevant.
v Provision and
maintenance of infrastructure to allow easy access to information and
development of Industrial Property through transfer of technology to the region
since Industrial Property Rights need to be worked in the domiciled country for
listing in the register or archives of the ministry.
v Ratification
of Relevant Treaties. The need to domesticate the relevant treaties into our
laws as a treaty can not be enforced without it being ratified. There are
several intellectual property (patents) treaties that would have made changes
in our national laws, but since they are not ratified there is little
contribution such can make.
v The
introduction and adequate implementation of collective system of royalty
payment and collection.
v As was
rightly pointed out by the former Minister of Commerce and Industry, Chief
Achike Udenwa, there is need for the government to look into the establishment
of an effective and autonomous industrial property commission.
v The role of
collecting societies in Nigeria is fast becoming significant and an example of
this is the licensing of traders in Alaba International Market Lagos, to
produce and distribute albums belonging to the members of those societies. In
combating piracy, the Nigerian government also introduced through the Nigerian
Copyright Commission (NCC), the Copyright (Optical Discs Plants) Regulations
2006 which mandates all disc manufacturing companies in Nigeria to register
with the NCC and meet required conditions for operation.
CONCLUSION
The importance of a very protective Industrial
Property regime can not be over emphasized. Countries that had their economies
developed are mainly countries that developed optimally their industrial
property regimes. In Nigeria, it is as good as there isn’t a proper industrial
property regime, therefore, overdependence on export and ofcourse the absence
of production. There is no doubt that the catalyst for technological growth and
development is indeed a powerful industrial property regime. For Nigeria to
therefore achieve its vision 20:20-20, it must develop it industrial property
laws to its optimal level.
[1] An
international conference styled: TOWARDS THE REGIONAL DEVELOPMNT OF
INTELLECTUAL PROPERTY IN AFRICA: “THE TRIPS AGREEMENT AND NEW ISSUES IN THE
DIGITAL AGE” held at the ECOWAS Secretariat, Abuja from
4th-6th April 2001. Organized by the United States Department of
Commerce, the Economic Community of West African States (ECOWAS),
the African Regional Intellectual Property Association (ARIPO) and the Intellectual
Property Law Association of Nigeria (IPLAN).
[2]
Economist Group Business. Nigeria: Licensing and Intellectual Property. The Economist Intelligence Unit Limited.
(2010). Print http://www.eiu.com
[3] Jackson, Etti. Nigeria:
Intellectual Property: A Tool For Economic Growth in Nigeria. (2009). Print. For more information visit www.mondaq.com
[4] Stillwaters Law Firm (2006). Print. For
more information visit www.stillwaterslaw.com
[5] Ibid.
[6] Jackson, Etti &
Edu. Victoria Island Lagos.
[7] Ibid.
[8] Ibid
[9] Emeka, E., Federal Government to Establish Industrial
Property Commission. PUNCH, (Sunday 2nd May, 2010). Print. See
also http://groups.yahro.com;
http://news2.onlinenugeria.com
[10] Victor,
M.I. & Christopher, U.O. A Review of the Nigerian System of Intellectual
Property. In: CAS-IP NPI. (2009). Institutionalization
of Intellectual Property Management: Case Studies from four Agricultural
Research Institutions in Developing Countries. CAS-IP, Rome, Italy. (2009).
Print
[11] Boadi, R.,
The Role of Intellectual Property
Rights in Biotechnology Innovation: National
and International Comparisons. McGill University’s Centre for Intellectual Property Policy (CIPP) & The European University Institute. Florence, Italy. (2005). Print
[12] Ukpabi, J.U. Potential of protected local
institutional innovations in catalyzing Nigerian Agro-Industrial Development. Journal of Agricultural Biotechnology and
Sustainable Development (JABSD). Vol. 1(3) (2009) pp. 062 - 068,. Print. www.academicjournals.org
[13]
www.notap.gov.ng visited
23rd November, 2010. 8.50 PM.
[14] Trade mark is
protected by Trade Marks Act, Cap. T
13, Laws of the Federation of Nigeria, 2004. While Patent and Industrial design
is governed by Patent and Design Act, Cap. 344. Laws of the Federation of Nigeria, 2004.
[15] Earl, W.K. &
Jack, L.L. An Intellectual Property Law Primer. No. 7-11. 2nd edition. (1982). Print.
[16] Kamil, I., Intellectual Property: A power tool for
economic growth-overview. World intellectual property organization. 2nd
edition. (2003). Print.
[17] Trademarks Act, Cap.
T13 Laws of the Federation of Nigeria, 2004.
[18] Udemgba, S., Some
Bottlenecks to Effective Enforcement of Intellectual Property Rights in
Nigeria. “n d”. For more
information visit: www.foakinrele.com
[19] Ibid
[20] Udemgba, S. Op cit
no. 18.