Available Legal Remedies for Intellectual Property Infringement in Nigeria

Introduction

Intellectual property (IP) rights are exclusive proprietary rights granted by law to the owners of innovative creations, such as inventions, literary/artistic works, and distinctive business identifiers. These rights provide legal protection against unauthorised use or exploitation of the IP.

However, IP infringement remains a significant challenge in Nigeria, with widespread violations of copyrights, trademarks, and patents. To address this, the Nigerian legal system offers both civil and criminal remedies to rights holders whose IP has been infringed upon.

Clarification of Concepts

Intellectual Property is defined by World Intellectual Property Organization (WIPO) as the creations of the mind, such as inventions, literary and artistic works, designs, symbols, names and images used in commerce.

Intellectual property (IP) infringement means an unauthorised use or exploitation of intellectual property rights, such as copyrights, patents, trademarks, and industrial designs. It occurs when someone uses a protected work without the permission of the rights holder.

Some common examples of IP infringement include:

• Copying and distributing copyrighted works like books, music, or films without permission
• Using a registered trademark or a confusingly similar mark on competing goods or services
• Manufacturing and selling patented inventions without the patent owner’s consent
• Reproducing and selling products with counterfeit trademarks
• Importing infringing copies of copyrighted works or patented products

IP infringement can occur both offline and online. The rise of digital technologies has made it easier to reproduce and distribute protected works, leading to increased infringement.

IP infringement harms rights holders by depriving them of the economic benefits of their creations. It also discourages innovation and investment by making it harder for creators to profit from their work. Consumers may also be harmed by the sale of counterfeit goods that are of inferior quality or even dangerous

Legal Framework for Intellectual Property Protection in Nigeria

The main laws governing intellectual property (IP) rights in Nigeria are:

• Copyright Act: Protects original literary, artistic, musical, audiovisual, sound recordings, broadcasts and other creative works. Administered by the Nigerian Copyright Commission. The Act grants exclusive rights to copyright owners, including reproduction, publication, performance, adaptation, and distribution of their works. It establishes the Nigerian Copyright Commission (NCC) as the regulatory body responsible for administering and enforcing copyright in Nigeria.

• Patents and Designs Act: It provides for registration and protection for inventions, industrial designs, and utility models, as well as remedies for infringement. The Act is administered by the Registrar of Patents and Designs under the Federal Ministry of Industry, Trade and Investment.

• Trademarks Act: The Act provides for the registration and protection of trademarks, as well as remedies for trademark infringement. It is administered by the Trademarks, Patents and Designs Registry under the Federal Ministry of Trade and Investment.

• Merchandise Marks Act: Prohibits the application of false trade descriptions to goods and services. It aims to protect consumers from being misled about the nature, quality, or origin of products they purchase. The Act empowers the courts to order the forfeiture and destruction of goods bearing false trade descriptions.

The Act is enforced by the Standards Organisation of Nigeria (SON) and the Nigeria Customs Service. SON inspectors have the power to enter premises, inspect goods, and seize suspected counterfeit products.

• Plant Variety Protection Act: The Act provides for the protection of new plant varieties, encourage investment in plant breeding and crop variety development, and establish a Plant Variety Protection Office under the National Agricultural Seeds Council to administer the law. The Office is responsible for granting breeders’ rights, maintaining a registry, and facilitating transfer/licensing of rights.

• Integrated Circuits Topographies Act: The Act provides for the protection of original layout-designs (topographies) of integrated circuits. It aims to encourage investment and innovation in the semiconductor industry by granting exclusive rights to creators of original integrated circuit designs. The Act establishes a registry for integrated circuits topographies and empowers the Registrar to administer the law.

Enforcement of intellectual property rights

The Federal High Court has exclusive jurisdiction over intellectual property concerns under section 251 (1)(f) of the Federal Republic of Nigeria’s 1999 Constitution (as amended).

Intellectual property rights can be enforced by Alternative Dispute Resolution, criminal and civil action in courts or by competent organisations such as the Nigerian Copyright Commission, trademark, patent, and design registry.

Legal Remedies Against Intellectual Property Infringement

Here are the legal remedies against intellectual property infringement in Nigeria:

Civil remedies:

• Damages: The court can award compensatory damages to the intellectual property rights (IPR) owner to cover the monetary value of the harm done and lost profits due to the infringement. It aims to put the rights holder in the position they would have been in had the infringement not occurred.

The amount of damages is assessed based on factors like the extent of the infringement, the profits made by the infringer, and the harm caused to the rights holder’s business. Damages can be enhanced for willful or flagrant infringement to serve as a deterrent.

The Copyright Act prescribes statutory damages ranging from ₦10,000 to ₦1,000,000 per infringement for copyright.

• Account for profit: The court can order the infringer to account for and surrender any unjust profits gained from the infringement. This remedy prevents the infringer from being unjustly enriched by their wrongful acts. The rights holder must prove the infringer’s profits, while the infringer can deduct legitimate expenses

• Injunctions: Courts can issue injunctions to prevent the infringer from engaging in further infringing activities.

• Delivery up for destruction: Courts can order the delivery and destruction of infringing products, molds, and manufacturing devices to prevent further infringement.

• Award of costs: The successful party in an infringement case may be awarded court fees, legal fees, and other administrative costs.

Criminal remedies:

• Fines and imprisonment: The Trademarks Act imposes criminal penalties of fines and imprisonment for trademark infringement.

• False entries in the register: Section 60 of the Trademarks Act criminalizes making false entries in the trademark registry, punishable by up to 7 years imprisonment

Conclusion

The Nigerian legal system provides both civil and criminal remedies to address intellectual property infringement. The civil remedies include damages, injunctions, delivery up for destruction, cost awards, and account of profits. Criminal penalties such as fines and imprisonment are also available, particularly for trademark and copyright infringement. These legal remedies aim to compensate rights holders, prevent further infringement, and deter future violations of intellectual property rights.

By Adeola Oyinlade & Co.

Adeola Oyinlade & Co.; a leading full-service law firm in Nigeria provides help and offers advisory to both local and foreign clients on intellectual property related matters including trademark, patent, copyright and industrial design in Nigeria. 

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