AN INTRODUCTION TO INTELLECTUAL PROPERTY LAW

Abstract

The ideas and intellectual capacity of people deserve to be protected. The physical and intellectual rights of people must be protected hand in hand. Infringements of intellectual ideas should also be covered. This article is an introduction to intellectual property law and will be delving into the different facets of intellectual property, ranging from copyright, trademark, patent and industrial designs. It will be exposing to those who do not know much about intellectual property, the extend to which their ideas can be protected.

Introduction

According to WIPO,[1] Intellectual property refers to creations of the mind, such as inventions; literary and artistic work; designs; and symbols, names and images used in commerce. There have been several conventions that guide the dealings of the different intellectual property such as the Berne convention, the Hague convention and so many others. Apart from these conventions, different countries have enacted different laws to protect different aspects of intellectual property. For example in Nigeria there is the Copyright Act of 2022, Trademark Act etc. Intellectual property Law came in a bid to protect and promote the use of intellect to foster creations and thereby development. It helps to recognise the makers and thinkers of creations and helps them to earn financial recognition and otherwise. By striking the balance between the interest of the innovators and the wider public, the Intellectual Property system aims to foster an environment in which creativity and innovation can flourish.[2]

Intellectual property is said to serve two main objectives, which are; the protection of the private interest of creators, innovators and entrepreneurs by enabling them to gain economic rewards for their innovation and creativity; and the protection of public interest in the promotion of science, arts and societal welfare by ensuring equitable access by the public to the products of creativity, innovation and entrepreneurship.[3]

TYPES OF INTELLECTUAL PROPERTY

Intellectual Property is a broad term used to attribute the several facets that ideas can be formed and creativity can be explore and specifically the ones that are protected by law. Some of these facets are: copyright, trademarks, patent, industrial designs and geographical indications etc.

Copyright

Copyright is a type of intellectual property law that protects  the original works of authors , such as literature, music, art, and software. It gives these creators the exclusive rights to reproduce, distribute, and display their work as well as create derivative works.it allows creators to control how their work is used and also profit from it. Copyright protection is said to be automatic for original works, and it typically lasts for a certain number of years, depending on the jurisdiction and type of work. Copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings.

Unlike  patent, designs and other types of intellectual properties that require registration for their protection, copyright protection is automatic upon creation of work and is not contingent on any form of registration. [4]

Exhaustive lists of works covered by copyright are usually not to be found inside legislations. Nonetheless, broadly speaking, works commonly protected by copyright throughout the world include:

• literary works such as novels, poems, plays, reference works, newspaper articles
• computer programs and databases
• films, musical compositions, and choreography
• artistic works such as paintings, drawings, photographs, and sculpture
• architecture
• advertisements, maps, and technical drawings.

Copyright protection also extends only to expressions, and not to ideas, procedures, methods of operation or mathematical concepts as such. Copyright may or may not be available for some of objects such as titles, slogans, or logos, depending on whether they contain sufficient authorship.

Patent

The law of patents protects new inventions and improvement on existing inventions. Patents grant monopoly rights to inventors in order to encourage scientific and technological advancements in the society. A patent is a form of intellectual property that gives its owner the exclusive right to make, use, and sell an invention for a specified period of time, usually in exchange for publicly disclosing the invention. Patents can be granted for new and useful processes, machines, manufactures, or compositions of matter, as well as improvements to existing inventions. The purpose of a patent is to encourage innovation and protect inventors’ rights. A patent is an intellectual property right granted to protect new inventions or improvements of an existing invention. It is granted by the government or its authorized agency under statutory law. For instance, patents are granted by the Patents and Designs Registry under the Patents and Designs Act[5]  in Nigeria. Oyewunmi also defines it as legal rights that confer on inventors of new and useful products or processes the right to exclude others from the commercial exploitation of the invention. This definition reveals that patents can be with respect to products (articles and other tangible objects) or processes (methods of achieving a result or processes for making products) {s.6(1) Patents and Designs Act 1970; Arewa Textile Plc & Ors v. Finetex Ltd[6]

Designs

An industrial design constitutes the ornamental or aesthetic aspect of an article. A design may consist of three-dimensional features, such as the shape or surface of an article, or of two-dimensional features, such as patterns, lines or color.[7]

At the wake of the Renaissance period, in the 15th century, people in Europe were interested in having same items in their homes and workplaces. This led to the emergence of large workshops across Europe where artisans duplicated these designed articles in large volumes. By the 16th century, ‘pattern books’ were being used in Italy and Germany which contained a collection of illustrated engravings or decorations and motifs that could be applied to various products. The emergence of industrial design as a profession is connected with the industrial revolution and mechanisation in Great Britain in the mid18th century. Around the same period, the US also experienced rapid industrial growth after World War I. The first formal use of the term ‘industrial design’ is attributed to Joseph Claude Sinel, who proclaimed himself as an industrial designer. There was also the Practical Draughtsman’s Book of Industrial Designs printed in 1853 by Jacques-Eugène Armengaud. The Rhodes Island School of Design was founded in 1877 but it was the establishment of a design program at the Carnegie Institute of Technology in 1934 that led to a formal recognition of designs as a profession.[8]

Industrial designs can be seen in various manufactured products all around us. These include the shape of our phones, watches, bikes, toys, laptops, cars, shoes, bags, belts, cups, guitar, clocks, alloy wheels and so Essentially, the law protects the design of various manufactured products in recognition of the efforts and resources invested by designers in the creation of aesthetic and creative designs as applied to such products. This section shall examine the concept of industrial designs and how this intellectual property right is protected by the Patents and Designs Act 1970.

dustrial design refers to the shape, colour and other aesthetic characteristics of industrially produced products. An industrial design is therefore the aspect of a product or article which is ornamental or aesthetic. It can be three-dimensional such as the shape or surface of the article, or two – dimensional such as patterns, lines or colour. An industrial design must therefore relate to the appearance of a product and does not extend to those aspects of the product which are determined by technical or functional necessity. A design is a pattern or representation which the eye can see and which can be applied to a manufactured article.[9]  ‘Any combination of lines or colours or both, and any three-dimensional form, whether or not associated with colours, is an industrial design, if it is intended by the creator to be used as a model or pattern to be multiplied by industrial process and is not intended solely to obtain a technical result’ (section 12 PDA).

Trademark

A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. Trademarks date back to ancient times when artisans used to put their signature or “mark” on their products.

A trademark is a mark or insignia used in the course of trade to distinguish the goods or services of one undertaking from those of another undertaking. By section 67 of the Trade Marks Act 1965 (TMA), a trademark is defined as “… 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 proprietor or as registered user to use the mark, whether with or without any indication of the identity of that person…” While this definition may be complicated, it entails certain essential concepts about trademarks which we shall now look at. 22.3 A trademark must consist of a mark. A mark can be a name, device, branding, label, ticket, signature, letter, numeral or any combination of these things (section 67 TMA). This definition of a mark is restrictive as it excludes marks like smell (eg scent of a perfume), shape (eg shape of the Coca-Cola bottle) or sound (MGM’s Lion’s roar) which are registrable as trademarks in some developed countries. Some of these countries only require that the mark should be capable of graphical representation. Another requirement for a mark to qualify as registrable under the TMA is that the trademark must either already be in use or it is proposed to be used. In the case of the later, the applicant must have the intention or propose to use the mark in the reasonably foreseeable future.

In John Batt & Co v. Dunnet & Ano[10]r , the English court established that where a trademark is registered in respect of one of the classes of goods under the Act and that class includes things of a variety of descriptions, and it appears that at the time of the registration the trader was dealing in only one of those descriptions of goods, and had no intention of dealing in any other, the registration of his trademark ought to be restricted by excluding the descriptions of goods in respect of which he was not carrying on business. This principle was later extended to cover instances where although the trader was dealing in the particular description of goods in question, but at the time of the registration of the trademark, he never applied his mark to such description of goods, and had no intention of so applying it. Therefore, the intention to use the mark must be more than mere contemplation (see Atanda Trading as Sule Atanda & Bros v. Johnson & Johnson & Co[11]

Conclusion

Intellectual property Law is an aspect of law that cares for and protect the ideas and interest of creatives. It helps attribution to be given to innovators and creatives. It has come to mitigate and possibly eradicate plagiarism and stop the theft of works of others. With intellectual property, it is positive that intellectual property will go a long way in helping with idea formations, innovation and creativity.

[1] World Intellectual Property Organisation.

[2] Wipo.int.

[3] Desmond O. Oriakhogba and Ifeoluwa A. Olubiyi “ Intellectual Property in Nigeria (emerging trends, theories and practice” pg. 6.

[4] Ibid, at 168.

[5] 1970

[6]  1997-2003) 4 IPLR 350.

[7] Wipo.int

[8] Ibid.

[9] Re Clarke’s Registered Design (1896) 2 Ch. 38.

[10] 1899 AC 428.

[11] 1968 NCLR 364.