TRADEMARK, NOT COPYRIGHT
“Gotta get ‘e choke’ copyrighted it’s getting outta hand [Davido, 2021]”. This tweet by a Nigerian musician Davido reflects the misunderstanding between Trademarks and Copyright by many creativities.
The phrase cannot be copyrighted, as it does not come under the list of works protected under Copyright. The protection provided for such a catchphrase is Trademark. This article aims to examine the difference between Copyright and Trademarks using Nigeria as a case study and the scope of trademark registration.
WHAT CAN BE REGISTERED AS A TRADEMARK?
Any device, brand, heading, label, ticket, name, signature, word, letter, numeral, or any combination thereof may be registered as a trademark. To register Trademarks, Nigerian law classifies goods and services into the forty–five (45) classes. Multi–class applications are not allowed, so a separate application must be made for registration in each of these classes.
It is important to note that use is not a requirement for registration of a trademark in Nigeria, unlike in other jurisdictions.
WHAT CANNOT BE REGISTERED AS A TRADEMARK?
1. Deceptive or scandalous designs, logos or matters that are likely to cause confusion or is disallowed by law;
2. Names of chemical substances;
3. Geographical names in their ordinary signification;
4. Identical and resembling trademarks should not be registered; and
5. Musical jingles, smells and other non–traditional marks are not registrable in law.
WHAT IS A COPYRIGHT?
Section 1(1) of the Copyrights Act 2004 gives a list of works eligible for Copyright
(a) literary works;
(b) musical works
(c) artistic works
(d) cinematograph films
(e) sound recordings and
(f) broadcasts.
Copyright protects original works, be it literary, musical or artistic.
However, names including band names, movies, short phrases are not subject to copyright protection. As such, a phrase such as “E Choke” cannot be copyrighted as it does not fall under the list of works eligible to be copyrighted under the Copyright Act 2004.
WHAT DOES COPYRIGHT PROTECT
Copyright protects the works listed under Section 1(1) of the Copyright Act, provided that;
1 . Sufficient effort is expanded to make it original;
2.It has been fixed in a definite medium of expression, and
3.It is intended to be used as a model or pattern to be multiplied by an industrial process. Amongst other things, musical works and sound recordings are protected under Copyright. This includes the composition (lyrics and melody) and the actual song (sound recording). Hence, Copyright will afford any song released by artists protection. However, brand name, logo, signature and phrases are not eligible for protection under Copyright.
TRADEMARK REGISTRATION IN NIGERIA
The body responsible for registering trademarks in Nigeria is the Registry of Trademarks, Ministry of Trade and Investment, and the governing law is the Trademarks Act, 2004. As stated above, Trademarks are registered in classes. The registration of a trademark gives the owner exclusive right to the Trademark regarding particular the classes of goods it was registered for.
Each class is made up of different classifications or categories of businesses and services. Usually, depending on the nature of business or service rendered, a trademark may need to be registered in more than one class to be protected across the board.
Each class registration is independent of the other. To successfully register a Trademark in Nigeria, the applicant should conduct a search at the registry to confirm availability. Although this stage is optional, it is highly advisable to perform it. After the search, the proposed mark will be filed by an accredited trademark agent in Nigeria upon payment of the requisite application fee.
The applicant must execute a Power of Attorney in favour of the agent. It enables the agent to deal with any matter connected to the registration of the mark. Once the mark has been filed successfully, an official Letter of Acknowledgment is generated on behalf of the applicant. Where the application is successful, the registry issues an Acceptance Letter.
The next stage is the publication of the mark in the Trademark Journal. There is a statutory period of two months within which oppositions can be filed against the mark’s registration. Where there is no opposition or such opposition is decided in the applicant’s favour, the agent shall apply for a Registration Certificate. This certificate is proof that the mark has been registered at the Trademark registry.
It will contain the Registered Trademark No. and the date of filing. Such registration is valid for an initial period of seven (7) years and is renewable indefinitely for fourteen (14) years.
CONCLUSION
While Copyright is the more common, known and engaged intellectual property in the entertainment industry, other intellectual property provisions are helpful and offer protection to creatives, such as Trademarks. We look forward to creatives taking advantage of the legal protections provided under Intellectual Property laws beyond Copyrights.
Lastly, stay up to date with all you need to know about African music at SOA, right here.
