Trademarks are signs, slogans, symbols and logos that a person creates for themselves or another. These elements are not referred to as trademarks unless they have been registered by the body charged with carrying out such registrations.
The definition of “Trademark” was held by the Supreme Court of Nigeria in Ayman Enterprises Nig. Ltd v. Akuma Industries. The court held that the essence of a trademark is that it indicates a connection in the course of trade between the goods and some person having the right to use the name. A mark in this connection includes a device, brand, heading, label, ticket, signature, word, or any combination thereof.
In Nigeria, there is only one way to register trademarks, and the Trademarks Act provides for this as it is an important way to protect intellectual property rights and ideas. Before a trademark can be registered, it has to go through three stages during registration: application, acceptance, and publication. Application: The description of the intended design or whatsoever is to be trademarked is submitted to the body charged with trademark registrations.
A search is often conducted to find out if there are any identical or similar existing trademarks; in the absence of any, an application for registration begins. At the stage where the registrar issues a receipt of an acknowledgement of the application, it signifies progress. Still, it doesn’t certify the acceptance of the trademark wished to be registered.
Acceptance: After an application has been accepted and approved, the registry will issue a letter of acceptance but not a certificate of trademark. This means that pending the time when the intended trademark will be certified, it has to first be accepted and published in a journal.
However, there are times whereby the registrar can issue a letter of acceptance even before the intended trademark is published in a journal and prepared for its last stage of screening which is the registration process. Registration; Subsequent to the acceptance of an intending trademark, it has to be published in the news/journal for a period of two months to help persons with opposition come out openly to state reasons for their disapproval, if any. If there are oppositions it is the duty of the registrar to inform the applicant of these disapproval(s).
It would now rest on the applicant to respond to these disapprovals. After this response is taken, it will rest on the registrar to establish a tribunal. A verdict will be reached; whoever the verdict favours can proceed with the registration.
Where there isn’t any opposition to the earlier publication, the registration certificate will be issued for the trademark sought. This certificate holds the right of the trademark proprietor as a valid owner of the trademark and to the exclusion of every other person per (Dyktrade Ltd. v. Omnia Nig. Ltd (2000) All N.L.R. 591.) when it comes to that trademark, so long as it is valid and adequately renewed.
From the above, it is lucid that this is the only way a person can register a trademark in Nigeria. The body charged with this task is the trade and commerce department of the Nigerian Federal Ministry of Trade and Investment.
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The ongoing case of Sabinus Ejekwu v. Peak Milk and Sabinus Ejekwu v. Gala is related to the above.
Sabinus Ejekwu recently took action against Peak Milk and Gala. He accused Peak Milk of utilising his trademarked slogan “something hooge” for a commercial advertisement by them. He accused Gala of using a cartoon-like product of what is an image of him in a famous gesture. It should be noted that according to the facts presented by the lawyer of Ejekwu, he, at the time of suing, did not possess a certificate of trademark as to the slogan “something hooge.” Automatically, this supposes that he cannot rely on the Trademark Act in his suit against Peak Milk.
While we have seen Sabinus’s claim in Trademark and seen what it will result into, it is important we take another angle to look into it. Hence, what claim does Sabinus have in copyright? It has been argued that copyright laws would be unable to rescue Sabinus from winning the action against Gala if he solely relies on the Copyright Act.
However, this essay argues that this does not represent the position of the law. It should be noted that Sabinus has copyright to the picture that was imitated, worthy of mention is that this “picture” was extracted from a video made by the comedian which is protected per section 10 of the Copyrights act, LFN 2004. Therefore if it was imitated without his consent, then he has a right to bring an action against the gala. The only exception to the imitation of copyrighted acts is if they are in the form of pastiche/parody/caricature.
This is contained in the second schedule exceptions from copyright control, section b.It exempts penalty from people who use parody and caricature of other people for certain acts but not persons who use cartoons or graphical acts for the purpose of commercial advertisements.
This is deep-rooted in the legal maxim Expressio unius est exclusio alterius, which means that “the express mention of one thing is the exclusion of others.” Hence, pastiche, parodies, and caricatures were exempted, but this doesn’t exempt graphical work or cartoons.
The aforesaid seeks to say that Sabinus can rely on the copyright act and file an action against Gala (UAC Foods) in breach of copyright.
This Article has explained the intellectual property law issues involved in the Sabinus case. The essay provided arguments that reflect the stance of the law with respect to Copyrights and Trademark laws in Nigeria. It further espoused the position of the law as relates to classes Trademark registration. It clarifies the lingering differences between the Certificate of Trademark and the Acceptance letter for a Trademarked sign etc.
This essay recommends that musicians, artistes, and other intellectual property holders should trademark whatever slogan, slang, mark, and sign among other signature properties in order to grant them exclusive rights to these properties. Also, persons in the above class need to have basic knowledge of the workings of intellectual property law or better still have a lawyer versed in the subject to be on their team.
A lot of persons who fall into the above classes have lost financial claims to intellectual properties which they ought to possess but do not because of the absence of a trademark registration. Trademark registrations are very important and should not be taken with levity.
Olowoyo is a law undergraduate in Obafemi Awolowo University, Ile Ife
