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IP ABC™ (Week 31)—Can we sue MultiEnergy for passing off? Infusion Lawyers, Intellectual Property and Information Technology Law FirmIP ABC™ (Week 31)—Can we sue MultiEnergy for passing off? Infusion Lawyers, Intellectual Property and Information Technology Law Firm
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IP ABC (Week 31)—Can we sue MultiEnergy for passing off?

Question of the Week (31) 

I am the manager of one of the most successful athletes in Africa. Please call me TJ. My client is popularly known as Ben Breeze by fans locally and internationally. This nickname has practically become a brand synonymous with speed, power, and confidence. Last week, we stumbled upon a new energy drink in Lagos called Ben Breeze. Within weeks of being launched in the Nigerian market, the energy drink has being enjoying reception, especially amongst sportsmen and sportswomen. Ben Breeze is a product of MultiEnergy Limited, a Nigerian company. We consider MultiEnergy’s act an unlawful act of passing off. I believe MultiEnergy is unduly exploiting my client’s name and popularity to sell its identically named, energy drink, Ben Breeze. My client has not trademarked the nickname. Do we have a case in passing off?

 

Answer

For answer to this week’s question, click here. 

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IP ABC™

IP ABC™ is an initiative of Infusion Lawyers, a virtual intellectual property (IP) and information technology (IT) law firm for the knowledge economy and the digital age. 

 

Disclaimer

Characters, events, names, or places referred to in IP ABC may be fiction. Such fictional contents are meant to aid comprehension. When real names are used, it is for illustrative purposes only. Facts or stories around these names are fiction. Questions are for educational purposes. Answers provided on IP ABC are prepared by Infusion Lawyers and are for educational purposes only. Answers should not be construed as legal advice or legal opinion under any circumstances. If you have questions or legal problems that you need legal assistance with, please contact your IP lawyer or law firm, or contact  Infusion Lawyers if you have none. And whenever any links shared through IP ABC lead to other sites, neither IP ABC site nor Infusion Lawyers’ website incorporate any materials published in such linked sites. We also do not necessarily approve, endorse, or otherwise sponsor such links. ALL external links may have been used for reference purposes only.

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IP ABC (Week 4): Can I copyright my book title? Infusion Lawyers--Intellectual Property Law Firm in NigeriaIP ABC (Week 4): Can I copyright my book title? Infusion Lawyers--Intellectual Property Law Firm in Nigeria
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IP ABC (Week 4): Can I copyright my book title?

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Question of the Week (4) 

I’m a Nigerian author. Presently, I am writing my second book. The book is titled, Buhari: 100 Days in London and Other Stories. But there is a problem. I discovered 3 other writers who have written articles that are similar to the title of my book. In fact, when I contacted one of the writers about this, he emphatically told me that he was about to finish a book with a similar title. And just as I tried to think it through, a Nigerian movie also with almost identical title popped up in a TV advert. I badly want to use this title. For protection, can I copyright the title of my book?

 

Answer

The answer is NO.

Copyright law does not protect titles of books or titles of other literary works. Also, titles of both artistic and musical works are not copyrightable. (This may partly explain why so many books out there have the same titles and no one is getting into any legal troubles.)

The reason is that copyright protects only eligible works.

Eligible works are not only required to be artistic works (paintings), broadcasts (radio programs), cinematographic works (films), literary works (books), musical works (songs), or sound recordings (soundtracks, excluding films) but also required to meet 2 vital conditions.

These 2 conditions are as follows:

  1. Sufficient effort has been expended on making the work to give it an original character; and
  2. The work has been fixed in any definite medium of expression now known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device.

The two conditions above are prescribed in section 1(2) of the Nigerian Copyright Act.

Therefore, titles do not meet the first statutory condition above: sufficient effort expended on making the work to give it an original character.

In some other parts of the word, this is similarly described as a significant amount of original expression. Expressions as short as book titles do not qualify as sufficient effort. This is why you can neither stop the writers using identical or similar titles with yours nor protect your title under copyright. Copyright law says you need to do better than that!

But this doesn’t give you or any person the right to title artistic, literary, or musical works just about any existing title.

For instance, your book cannot be titled Buhari: 100 Days in London and Other Stories if that title is another person’s trademark. In other words, if the producers of the film 100 Days in London have trademarked the film title, you are prohibited from using any identical or similar titles for your book. (Yes, some titles qualify for trademark protection, either because those titles are to be used in connection with business or have become so well known they are distinctively connected to a particular author or publisher. This is more so with series and popular titles. Think the series Harry Potter or the popular book Chicken Soup for the Soul. Chinua Achebe’s Things Fall Apartthough with a title which is not original to the authormay qualify for trademark protection considering how well known the book has become globally. (Even Google honoured the author with a doodle recently.) 

So the point is this:
Once a book becomes a bestseller or becomes so successful it is recognized as a distinctive brand, the author or publisher may trademark the title. And once trademarked, the title is out of bounds to any person.

Consider this.
If you can come up with a title that is not already in use—particularly in the genre your book falls into—you may consider that title instead. As an author, you need to keep your publications away from avoidable controversies. You also don’t want to confuse your audience.

You wish to consider your options closely? For competent guidance, you may consult an IP lawyer or law firm for professional advice and assistance.

Best wishes

 

IP ABC

Follow-up questions, if any, are welcomed.

 

IP ABC™

IP ABC™ is an initiative of Infusion Lawyers, a virtual intellectual property (IP) and information technology (IT) law firm for the knowledge economy and the digital age. 

 

Disclaimer

Characters, events, names, or places referred to in IP ABC may be fiction. Such fictional contents are meant to aid comprehension. Answers provided on IP ABC are prepared by Infusion Lawyers and are for general purposes only. Answers should not be construed as legal advice or legal opinion under any circumstances. If you have questions or legal problems that you need legal assistance with, please contact your IP lawyer or law firm, or contact Infusion Lawyers if you have none. And whenever any links shared through IP ABC lead to other sites, neither IP ABC site nor Infusion Lawyers’ website incorporate any materials published in such linked sites. We also do not necessarily approve, endorse, or otherwise sponsor such links. ALL external links may have been used for reference purposes only.

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Can I sue FlexiBank for using my image? IP ABC Week 3 by Infusion Lawyers--Intellectual Property Law Firm in NigeriaCan I sue FlexiBank for using my image? IP ABC Week 3 by Infusion Lawyers--Intellectual Property Law Firm in Nigeria
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IP ABC™ (Week 3): Can I sue FlexiBank for using my image?

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Question of the Week (3) 

I’m Alade Thomas, a Nollywood comedian. Last weekend, I discovered a bank in Nigeria used my photo in one of its Instagram posts. The photo is a shot from a recent movie. To brand itself as a fun bank to do business with, the bank inserted the following words in the photo: “Unlike other banks, every day is Friday in every FlexiBank banking hall, making you smile and laugh all the way to success.” The bank’s action is surprising. This is because neither the bank nor any of its agents contacted me before using my photo. Now my face is all over social media. “How much did the bank pay you, Honey?”, asked my wife. “Congrats, you owe me a drink!”, a couple of friends have been saying over the phone. Plus thousands of reposts, retweets, shares, and direct messages. I am unhappy about this. I badly needed a quiet time with my family this new year. Can I sue FlexiBank for using my image without permission?

 

Answer

Since FlexiBank did not seek permission before using a photo of you to push its brand on Instagram, you want to know if you have right to sue the bank.

The answer is YES.

In the scenario above, there are various rights that apply to various persons, including you.

 

FlexiBank has violated your right to privacy and family life.

First, you have a right to privacy. Your right to privacy and family life is guaranteed under section 37 of the Constitution of the Federal Republic of Nigeria. By FlexiBank’s act of using a photo of you without first seeking and obtaining your permission, FlexiBank has violated your fundamental right. You are therefore entitled to sue FlexiBank for violating your right to privacy and family life.

 

Apart from your right to privacy, how about your right to publicity—specifically your image rights?
Now, apart from your constitutional right to privacy, you may be wondering if you have any image rights against FlexiBank. Right of publicity is your right as an individual to control how your image, name, or other aspects of your identity is commercially exploited by any person. Image rights is therefore part of your right of publicity. Image right is your right to control the commercial use of your image as a personality in the public. In some other countries, image right is treated as a property capable of being protected by law through registration.

But Nigeria does not have any law that protects right of publicity or image rights. So whether you can claim damages against FlexiBank for commercially exploiting your image is largely a question only a court of law can determine. Commercial rights in images is effectively limited in Nigeria. You may consider speaking with your lawyers.

 

And because the photo of you is protected by copyright, FlexiBank may still be liable for copyright infringements.
Notice we keep saying, a photo of you, not your photo. This is because we want to be sure you understand that for copyright purposes there is a distinction between the two. The image of you FlexiBank has used on Instagram is a photo of you, not necessarily your photo. This is because the face in the photo belongs to you, but the photo itself may belong to the photographer or camera person who took the shot. Since FlexiBank used a screenshot of you from a movie, it is most likely that the photographer or camera person who worked with the film producer has copyright in the photo. This person is entitled to sue FlexiBank for copyright infringement in a separate legal action. 

By the way, since FlexiBank originally posted the infringing photo on Instagram, you may contact Instagram to remove it. Clauses 4 and 8 of Instagram’s Terms of Use allow users to demand that infringing posts be removed.  

For competent guidance, consider consulting an IP lawyer or law firm for professional advice and assistance.

Best wishes

 

IP ABC

Follow-up questions, if any, are welcomed.

 

IP ABC™

IP ABC™ is an initiative of Infusion Lawyers, a virtual intellectual property (IP) and information technology (IT) law firm for the knowledge economy and the digital age.

 

Disclaimer

Characters, events, names, or places referred to in IP ABC may be fiction. Such fictional contents are meant to aid comprehension. Answers provided on IP ABC are prepared by Infusion Lawyers and are for general purposes only. Answers should not be construed as legal advice or legal opinion under any circumstances. If you have questions or legal problems that you need legal assistance with, please contact your IP lawyer or law firm, or contact Infusion Lawyers if you have none. And whenever any links shared through IP ABC lead to other sites, neither IP ABC site nor Infusion Lawyers’ website incorporate any materials published in such linked sites. We also do not necessarily approve, endorse, or otherwise sponsor such links. ALL external links may have been used for reference purposes only.

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IP ABC by Infusion Lawyers, Intellectual Property Law Firm in Nigeria--Copyright - Alpha Stock ImagesIP ABC by Infusion Lawyers, Intellectual Property Law Firm in Nigeria--Copyright - Alpha Stock Images
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IP ABC™: Software Development Contract: Who has copyright in the source code? (Week 2)

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Question of the Week (2) 

I’m John Udeze, an entrepreneur who runs FinSoft, a technology business in Port Harcourt. Six months ago, I came up with a FinTech business idea. Because the business would be best ran as an app, we contracted a professional app developer in Lagos to build the app for us. The app developer emailed invoice and app-development contract. We paid and signed accordingly. After the developer completed the app, she handed over the app to us but to our shock refused to handover the source code used in building the app. Till date, she insists the source code does not belong to us. Since this was a contracted work, is my company FinSoft not the owner of the source code as well?

 

Answer

You want to know if apart from owning the resultant app from the software development you also own the source code.

 

The answer is NO.

Your company—FinSoft—does not own the source code. Under copyright law, source code belongs to the app developer, not the contractor, FinSoft. What belongs to FinSoft is the resultant app, not the source code behind the app. Except the app-development contract you signed states that FinSoft would own the source code as well, the app developer can rightly hold on to the source code as the copyright owner. This is the position of the copyright law in Nigeria and most countries.

 

 

Nigeria’s Copyright Act favours the author or creator of a work, giving him or her first copyright ownership. 

First, the Nigerian Copyright Act has a general position on who has copyright in a work. Under section 9(1) of the Act, copyright ‘shall vest initially in the author.’ The author in this case is the app developer, not FinSoft. 

Second, depending on the nature of work and the nature of business or relationship between an author of a work and a person or entity the author has created the work for, the Nigerian Copyright Act has various positions on who has copyright in the work. 

In your own case, since FinSoft contracted the app developer to build the fintech-business app, copyright in the source code belongs—in the first instance—to the app developer. Even if the app developer was your employee, the position remains the same—the app developer first owns the source code, not FinSoft. This is the effect of section 9(2) of the Act. 

 

How FinSoft Can Become Copyright Owner of the Source Code

One way FinSoft can become the copyright owner of the source code is if the app-development contract it signed with the app developer expressly states that FinSoft owns the source code as well. To determine this, we advise you consult an IP lawyer or law firm to help you study the app-development contract closely and guide you accordingly. 

 

If the app-development contract does not contain the above and there is no other contractual document between the app developer and FinSoft stipulating that FinSoft owns the source code, it’s bad for FinSoft—very bad considering the resources the company must have invested in building the app. Consider consulting an IP lawyer or law firm for professional advice.

Best wishes
IP ABC

Follow-up questions, if any, are welcomed.

 

IP ABC™

IP ABC™ is an initiative of Infusion Lawyers, a virtual intellectual property (IP) and information technology (IT) law firm for the knowledge economy and the digital age.

 

Disclaimer

Characters, events, names, or places referred to in IP ABC may be fiction. Such fictional contents are meant to aid comprehension. Answers provided on IP ABC are prepared by Infusion Lawyers and are for general purposes only. Answers should not be construed as legal advice or legal opinion under any circumstances. If you have questions or legal problems that you need legal assistance with, please contact your IP lawyer or law firm, or contact Infusion Lawyers if you have none. And whenever any links shared through IP ABC lead to other sites, neither IP ABC site nor Infusion Lawyers’ website incorporate any materials published in such linked sites. We also do not necessarily approve, endorse, or otherwise sponsor such links. ALL external links may have been used for reference purposes only.

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IP ABC by Infusion Lawyers: Intellectual Property Law Firm in NigeriaIP ABC by Infusion Lawyers: Intellectual Property Law Firm in Nigeria
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IP ABC™: Protecting Software in Nigeria (Week One)

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Happy New Year from IP ABC, Infusion Lawyers: Intellectual Property Law Firm in NigeriaQuestion of the Week (1) 

We are a tech company in Nigeria. We have just finished building an appfirst of its kind in Africa. Because we have big plans for this app, we need to protect it. Since the app has an innovative and intuitive technology, we want patent protection. How do we go about getting a patent in Nigeria?

 

Answer

You want to patent your new and intuitive app in Nigeria.

In Nigeriaand most countriesapps are eligible for copyright protection only, not patent.

This is because apps are software programs and software programs are categorized as literary works under the Nigerian Copyright Act. They are literary works because software programs are written in computer language (whether source code or object code). The fact of their being written is what makes them literary, thus their functionalities are immaterial. 

The implication of the position above is that your company cannot successfully apply for patent at the Trademarks, Patents & Designs Registry in Nigeria. Patents are granted to protect new scientific and technological inventions only, not software programs. So while your app may have “innovative and intuitive” capabilities, the Patents and Designs Act—which applies to inventions in Nigeria—does not recognize software programs as subjects of patent.

 

 

Patenting Your Software outside Nigeria

Because you have “big plans” for your app, you may consider patenting your app in other jurisdictions, particularly the marketplaces you wish to expand to. In Europe and the United States for instance, software patents are legally acceptable, but subject to certain requirements. In Europe, the European Patent Office (EPO) treat software programs as  computer-implemented inventions and requires that to qualify for patent, the software program or computer-generated invention must solve a technical problem in a novel and non-obvious manner. In the US, patent law does not permit granting software patent that contains abstract ideas

To help your company navigate this typically technical software-patent matter, consult an IP lawyer or law firm.

Best wishes
IP ABC

Follow-up questions, if any, are welcomed.

 

IP ABC™

IP ABC™ is an initiative of Infusion Lawyers, a virtual intellectual property (IP) and information technology (IT) law firm for the knowledge economy and the digital age.

 

Disclaimer

The answers provided on IP ABC are prepared by Infusion Lawyers and are for general purposes only. Answers should not be construed as legal advice or legal opinion under any circumstance. If you have questions that you need legal assistance with, please contact your IP lawyer or law firm. And whenever some links shared through IP ABC lead to other sites, neither IP ABC site nor Infusion Lawyers‘ website incorporate any materials published in such linked sites. We also do not necessarily approve, endorse, or otherwise sponsor such links. ALL external links may have been used for reference purposes only.

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