Section 38 of the Companies and Allied Matters Act, 2004 of the Federal Republic of Nigeria states unequivocally that every company shall, for the furtherance of its authorized business or objects, have all the power of a natural person of full capacity. One of the powers of a natural person is the power to have intellectual property rights over his works to the exclusion of any other persons. Therefore, since a company is a juristic personality in the eyes of the law, it stands to reason that such a corporate entity can also acquire intellectual property rights to the exclusion of any other corporate entity or natural persons. A corporate entity as an artificial person has the right to intellectual property. It also has the right to ensure that its property rights in copyrights, patents, trademarks, and designs are not infringed upon by unauthorized persons.
WHAT IS AN INTELLECTUAL PROPERTY RIGHT?
These are rights given to a person over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period. According to the World Intellectual Property Organization (WIPO), intellectual property refers to creations of the mind: inventions, literary and artistic works; and symbols, names, and images used in commerce. Property rights allow creators, or owners, of patents, trademarks, or copyrighted works to benefit from their work or investment in a creation. Intellectual property rights reward creativity and human endeavor which enhances the progress of the human race. These are negative rights that are aimed at preventing persons from the exploitation of the works of others. The rationale is that the hard work, labor, dexterity, ingenuity, and talent of a person are not unlawfully and illegally exploited by lazy, mischievous, and fraudulent persons.
Article 27 of the Universal Declaration of Human Rights provides for the right to benefit from the protection of moral and material interests resulting from authorship of scientific, literary, or artistic productions.
PROCEDURES FOR ACQUIRING DIFFERENT INTELLECTUAL PROPERTY RIGHTS OF A COMPANY
A company can purchase intellectual property rights. The way that the purchase takes place varies a little but most commonly it will be in the form of a license. A company can also acquire an intellectual property right through the assignment of these rights to the company from the original owner of the right. Employees of a company could discover new ways of doing things and the company has the intellectual property right over the discoveries of its employees. A company has a patent right granted to it for a product or a process that provides a new way of doing something or offers a new technical solution to a problem. This patent right is granted to a company to the exclusion of any other company and these are intellectual property rights of a company.
When a company acquires intellectual property through its employee, the company is advised to do the following to have complete legal rights over the intellectual property acquired:
- The company has to determine if it has a written agreement with its employees and independent contractors. If so, does it include an “assignment of inventions” or “ownership of discoveries” provision? Does that provision clearly state the employee “hereby assigns” all rights and ownership in the intellectual property, trademarks, and/or copyrights?
- Make sure the written agreement is supported by sufficient consideration. Was the agreement executed prior to the commencement of employment or later? If later, what additional consideration did the company provide to the employee in exchange for his or her execution of the agreement?
- The company must Have its prospective employees and/or independent contractors identify, in writing, any intellectual property they may own prior to commencing the employment or contractual relationship.
- Periodically have employees update and identify, in writing, any intellectual property that they believe they own and make sure such intellectual property was created independent of the company’s resources and the employees’ duties.
- Conduct exit interviews with employees and independent contractors, reminding them of their contractual obligations.
Another property right of a corporate personality is Utility Models. These are inventions protected by utility models which are also known as ‘’ petty patents’’ or ‘’ utility innovation’’ A company can also acquire property rights through its Trade/Service Marks. These are distinctive signs that identify certain ‘’ products or services’’ of a company as those produced or provided by a specific company allowing the consumer to distinguish them from goods or services of others.
A cooperate entity has a copyright over its works. This is made possible if a company is involved in the creation, recording, publication, dissemination, distribution, or retailing of artistic, musical, or literary works. This is also possible if a company has a website, a brochure, a corporate video, or does its advertisement on newspaper or TV. An intellectual property right of a company could also arise as a result of the use of music, pictures, or software products owned by others in any of its publications, brochures, databases, or websites. The company must register its intellectual property rights in the aforementioned works with the relevant authorities created by statutes in the jurisdiction of operation.
Well-known marks of a company could also form part of its intellectual property. These marks are usually protected, irrespective of whether they are registered or not in respect of goods and services which are identical with, or similar to those for which it has gained their reputation. Put differently, specific companies are identified by consumers with certain marks associated with the company to the exclusion of other corporate organizations. These marks form part and parcel of the company’s intellectual property.
Trademarks (‘’TM’’) of a company form part of its intellectual property. A company’s TM is a mark used or proposed to be used concerning its goods to indicate a connection in the course of the trade between its goods and some persons having the right either as proprietors or as registered users to use the mark. This mark may include a devise, brand, heading, label, ticket, name, signature, word letter, numeral, or a combination of these marks. The Nigerian Trademark Act Cap T13 LFN 2004 regulates trademark registration and practice in Nigeria.
To be able to protect its marks, the company must register its marks with the Trademark Registry. The law requires that a register of TM be kept by the registrar of TM. The register shall contain all registered TMs with the names, addresses, and other details of their proprietors.
The company shall upon registration be entitled to exclusive control over the use of the TM about the goods and services under which it is registered. On the other hand, an unregistered TM will prevent the TM proprietor from instituting any proceeding to prevent or to receive damages for infringement of his trademark under the Trade Marks Act. However, this does not affect his right to bring an action in passing of goods at common law.
The company’s TM (whether registered or not) is assignable and transmissible concerning either all or some of those goods in respect of which it is registered, or in connection with the goodwill of a business. However, concerning a registered TM, the record of such TM and assignment made in respect of it shall be registered in the Register of Trade Mark and shall be made available for the inspection of the public. In the same vein, a person other than the Proprietor of a TM may be registered as a registered user of the trademark with all or any other goods in respect of which it is registered.
The industrial designs of a company form part of its intellectual property rights. These rights protect the ornamental or aesthetic aspect of a useful article which usually appeals to the sense of sight or touch and can be reproduced in significant quantities. Protection of this right can only be acquired through registration.
A manufacturing company like Toyota has patent rights over its cars all over the world. A patent is described simply as a monopoly in respect of an invention. The Patent Act 1970 (now designated Cap P2, LFN 2004) governs/regulates the registration and practice of patents in Nigeria. For a corporate personality to be qualified for the patent, its invention must comply with the following requirements:
- It must be a new or novel invention or an improvement upon a patented invention; which
- result from an inventive activity; and
- It is capable of industrial applications.
An invention is new or novel if it does not form part of the state of the art. The statute of the art means everything concerning that art or field of knowledge that has been made available to the public anywhere or anytime. A patent cannot, however, be obtained in respect of a plant or animal or any biological process for the production of plants or animals. Neither will patents be granted in respect of inventions whose exploitation would be contrary to public order or morality, for example, cloning.
The right to patent is vested in the person who is the first to file whether or not he is the true inventor. Where the invention is made in the course of employment or the execution of a Contract for the performance of a specific work, the right of a patent in the invention shall be vested in the employer. The employee may however be entitled to fair remuneration if his contract does not require him to make such invention or if the invention is of exceptional importance.
The company’s right in a patent subsists for 20 years from the date of filing of the relevant patent application and it is not renewable. Patent shall lapse if the prescribed annual fees are not duly paid upon the expiry of the period of grace. Similarly, a patentee may by a written declaration addressed to the Registrar of Patent, surrender his patent. The surrender shall take effect upon registration. The company’s patent on an invention is nullified where the description of the invention or claim does not conform to the provision of the law or if it is defeated by a prior application from an earlier foreign priority.
The industrial design of a company falls within its intellectual property. An industrial design, according to the Patent and Designs Act, is any combination of lines, colours, or both; any three-dimensional form (whether or not associated with colours) intended by the creator to be used as a model or pattern to be multiplied by an industrial process. A company can register its designs as industrial designs if they are new and not contrary to public order or morality. A design made available to the public anywhere and at any time before the date of registration is not new. However, an industrial design will not be deemed available to the public solely because the creator has exhibited it in an official or officially recognised place within six months preceding the filing of the application for registration.
The company’s intellectual property right is said to have been infringed uponif anybody who without the license or authorization of the company does an act which violates the copyright of the company, such a person is said to have infringed on the company’s copyright it has on its works. Similarly, a company’s Trade Mark would be deemed to have been infringed upon under the Nigerian Trade Marks Act if any person not being the proprietor, assignee or registered user of the TM uses a mark identical with or so nearly resembling the company’s mark and it is likely to deceive or cause confusion in the course of trade, concerning goods in respect of which it is registered.
Where a person other than the company/ patentee or the Industrial Design owner or any of their respective assignees or privies does or causes any act to be done about the use of a Patent or Design, it shall amount to an infringement of such patent or Industrial Design as the case may be.
Upon the occurrence of any of the infringements mentioned above, a suit may be filed when its copyright, trade mark, or industrial design has been infringed upon. It may be entitled to reliefs by way of damages, injunction (including an Anton Piller order), rendering of account, and such other relevant reliefs as the court may deem necessary in the circumstances.
This article has been able to reveal that a corporate entity under the law is a juristic personality capable of acquiring intellectual property like the natural person. The ways it could acquire these rights have been highlighted above. Therefore, in terms of intellectual property rights acquisition, there is no difference between a corporate personality and a natural person.
Senior Associate and Team Lead: Litigation
Stillwaters Law Firm