In what ways would you say IP differs when you are dealing with cases in the US and Europe, in comparison to Nigeria?
There are numerous differences but let me highlight a few:
· In UK and US, smells, sounds, shapes and colours are recognised as having trademark capability and are formally protected under relevant Trademark legislations as opposed to Nigeria, whose Trademarks Act is a regurgitation of UK Trademarks Act of 1938 and thus less modern.
· Still on trademarks, the UK (unlike Nigeria), does not require any examination on relative grounds prior to acceptance for publication, thus putting the onus on 3rd parties, to oppose applications of interest to them at the advertisement stage. This reduces the time frame for obtaining registration.
· In both the UK and USA, ownership of a trademark is established by whoever first uses it in commerce. This is known as the First to Use system. It requires you to actually use the mark in connection with goods or services in order to protect your trademark. Therefore, if there is a dispute between you and another party over a trademark, whoever used it first commercially will own the right, even if they did not register it. In Nigeria, the registered trademark owner is the legal owner of the trademark and has superiority over any other right. However, exceptions are made where there is evidence to show that a person or a predecessor in title has continuously used that trademark from a date previous to the use of the registered trademark. The Registrar may permit the registration of trademarks that are identical or nearly resembling each other by way of ‘Honest Concurrent Use’.
· Still on patents, the US recognises the ‘First to Invent’ rather than the ‘First to File’ system which obtains in Nigeria. Whoever establishes proof of being the first inventor of an item or technology will be awarded the patent, rather than who filed first. In Nigeria, the first to file is given a patent right in addition to the real inventor.
Uwa Ohiku
Telephone: (234)-1-4626841, 1-2806989
www.jacksonettiandedu.com
Email: uwaohiku@jacksonettiandedu.com, ipjacksonettiedu@jacksonettiandedu.com
Uwa is a Partner and Head of the Intellectual Property Department (IP) of the Firm. She has specialist experience in all aspects of IP law & practice and handles the local IP portfolios of numerous blue chip international corporations based particularly in the US and Europe.
JACKSON, ETTI & EDU is a leading full-service commercial law firm rendering legal services to a broad spectrum of local and international clientele in diverse areas of law. With over 30 years combined valuable experience, our lawyers have gained extensive experience in advising and acting for clients on a wide range of subject matters.
