Olufola Wusu

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Intellectual property (IP) law is a complex area. This article can give you information about the types of protection available, but there may be strategic and financial reasons why applying for IP rights may not be commercially advantageous. You should consider seeking professional advice, for instance from an IP attorney, before deciding how to proceed.

Many people have great ideas for new products or services but don’t have the means to get them to market and often look for a larger company to help them. If your idea is so unusual that it’s profitable, before you show it off, you’ll want to have that company sign a nondisclosure agreement promising it won’t steal it. This is because there is no patent protection for an idea in Nigeria.

Legal basis for protecting an idea?

In Nigeria Intellectual property rights protect the exploitation of ideas, information and inventions that are of commercial and proprietary value(not all things can be protected)

There is ample protection for the intellectual property rights of both Nigerians and foreigners this includes copyright, patents and industrial and design rights in line with international treaties and conventions.

Intellectual property protection includes Copyright, Patent, Industrial Design and Trademark.

An idea that has not been exploited is not protected under the legal regime governing intellectual property; simply put an idea on its own is not protected by law.

For an idea to be protected it must be exploited or at least reduced into a fixed form for it to come under a head of protection under the Intellectual property regime in Nigeria.

Copyright exists in creative and artistic works such as books, movies, paintings, photographs and software. A copyright gives the holder of such copyright the exclusive right to control exploitation, production and adaptation of such a work for a certain period of time.

Section 1 of the Copyright Act states very categorically that class of works that are eligible for protection, the list is exhaustive and sadly it does not include ideas.

As matter of fact unless an “idea” or work falls under any of the above headings, that idea or work will not be eligible for copyright protection. As a rule ideas are not protected only works are protected by copyright.

Copyright exists in work on the basis of originality and fixation. Simply put for a work to be eligible for protection under copyright such a work must be original and must be reduced into a fixed form.

Thus if an idea is reduced into a fixed form as long as the two requirements for copyright protection are met, then copyright protection would lie in favour of such a work and as such it may be wise to reduce such an idea into a fixed form and get copyright protection for such a work.

Practical steps to protect an idea

Many people have great ideas for new products or services but don’t have the means to get them to market and often look for a larger company to help them. If your idea is so unusual that it’s profitable, before you show it off, you’ll want to have that company sign a nondisclosure agreement / confidentiality agreement promising it won’t steal it. This is because there is no patent protection for an idea in Nigeria.

Get a good lawyer (that includes me) in your industry to help write a nondisclosure agreement. Some agreements spell out exact confidentiality measures and obligations and monetary penalties if the signer is found to have breached the agreement, though you don’t want terms so harsh that nobody would sign it, although reluctance to sign the agreement would usually be a sign that the company might just be willing to borrow your idea behind your back.

Without such protection, winning an infringement claim may be difficult. If you do encounter a copycat, it may be worth hiring a lawyer to investigate the merits of your case. If the manufacturer replicated your product and packaging to the point of customer confusion or copied something that’s protected under trademark or copyright law, you might have a strong legal case.

Basis of Non-disclosure /Confidentiality agreement

It is trite law that every person who receives information which has the necessary “quality of confidence” about it knowing that he is required to keep it confidential is likely in law to be deemed to have accepted (either expressly or impliedly) obligations of confidence relating to that information (at least if he does so before he receives the information). Accordingly, as a matter of law, a written secrecy agreement is not strictly necessary.

Nevertheless, it is highly desirable for the protection of the person disclosing the information that such an agreement should be entered into by any recipient of it, since having documentary evidence of the information regarded as confidential and the acceptance of confidentiality obligations relating to it will assist him in enforcing them against the recipient.

No gainsaying the fact that the process of entering into the Agreement will also be evidence that the disclosing party operates a practice of maintaining confidentiality which will be of assistance should he need to take proceedings for breach of confidence against the recipient or any third party such as ex-employees of his own or of the recipient.

Additionally, which may be just as important in some cases, the recipient will have a clear statement as to what he may and may not do with the information provided and if this is clear any breach of same will be easier to prove.

Possibility of Litigation

However it’s more probable a company would go the extra mile to alter your product or design just enough to dodge any legal issues. And please keep in mind that enforcing those legal protections in court can be prohibitively expensive. In Nigeria just like it obtains in other jurisdictions, a lawyer will first send a cease-and-desist letter, describing the believed offense and requesting the offender to stop producing the product and possibly pay damages. If letters don’t work, the next step is usually a lawsuit.

Please bear in mind that a law suit In Nigeria can cost hundreds of thousands of Naira in legal fees and filing fees and take away plenty of time from your business. Lawsuits in Nigeria simply take a long time, on average four years at the High Court and there’s no guarantee you’ll win.

Conclusion

In the end, the best way to protect yourself is by being extra cautious about whom you share your idea with. It’s worth talking extensively with others in your industry and getting referrals before disclosing your concept to anyone.

Olufola Wusu is a Commercial, Oil and Gas and I.P. Lawyer based in Lagos

Olufola Wusu Esq. © 2012

Olufola Wusu is noted for his “dynamic practice” and “commercial acumen”. He is praised for his “first-rate skills” in assisting clients…