Nigeria: Enforcing Intellectual Property Rights in Nigeria: Towards Arbitration and Specialized Courts

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introduction

Application of intellectual property (“IP

Regulatory framework and institutions

The main types of intellectual property rights in the Nigerian legal system are copyrights, patents, trademarks and industrial designs. Regulatory frameworks include the Copyright Act, Cap. C28, the Trademarks Act, Cap. T13, the Patents and Designs Act, P2 and the Trademarks Act, Cap. M10.

These laws are enforced by the Nigerian Copyright Commission (“CCN“), The Register of Trademarks, Designs and Patents, which is a subdivision of the Ministry of Industry, Trade and Investment, the National Agency for the Control of the Administration of Food Products and drugs (“NAFDAC“), Nigerian Police (“MFN“) and The Nigerian Custom Service (“NCS“).

Nigeria is also a signatory to numerous international intellectual property treaties. These include the World Intellectual Property Convention (“WIPO“) of 1970, Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRAVEL“), Berne Convention and Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, etc.

The present situation

Enforcement of intellectual property rights in Nigeria has been slow, largely ineffective, and fraught with obstacles and gaps. We will consider the causal factors: –

  • Obsolete and weak laws: The main laws in force were adopted from the laws of England and date back to the 19th century without revision since promulgation. Intellectual property is a constantly evolving concept and these laws also do not take into account these dynamic changes in intellectual property, including technological advancements. These laws are also weak and cannot effectively control issues such as piracy and counterfeiting.
  • Non-application of international treaties: Section 12 of the Constitution of the Federal Republic of Nigeria 1999 as amended (“CFRN
  • Lack of awareness and insufficient finance and staff of regulatory agencies: Regulatory agencies responsible for enforcing intellectual property rights in Nigeria are severely understaffed; do not have the necessary equipment, training and knowledge to perform their duties effectively. . These result in slow and inefficient enforcement of intellectual property rights.
  • Lack of uniformity and cooperation between implementing agencies: Intellectual property is a vast and technical field. It cannot be enforced by a single regulator; agencies need to work together. However, in Nigeria such cooperation does not exist, they also lack a uniform public domain between agencies to access each agency’s data in the enforcement of intellectual property rights.
  • Judicial execution: The Nigerian justice system is slow and cases take excessive time to come to a conclusion. This, combined with the technical nature of intellectual property rights, the lack of such technical knowledge on the part of judges, and the failure to comply with court orders further hampered the effective enforcement of intellectual property rights by the judiciary. In addition, the Federal High Court has exclusive jurisdiction over intellectual property disputes. This is a barrier to parties exploring alternative dispute resolution (“ADR“).

The path to follow

Due to the shortcomings in the enforcement of intellectual property rights and the settlement of intellectual property disputes in Nigeria, it has become necessary to consider new alternative procedures. These include arbitrations and special tribunals.

Why arbitration

Black’s Law Dictionary arbitration is a dispute resolution process in which the parties to the dispute choose one or more neutral third parties to make a final and binding decision resolving the dispute. WIPO advocated the use of arbitration to resolve intellectual property disputes and went further by establishing an arbitration and mediation center to resolve intellectual property disputes. It has also set up its arbitration rules. Here we discuss the advantages of arbitration over litigation and the reasons why intellectual property disputes should be resolved using arbitration in Nigeria.

  • Technicality involved in intellectual property: Intellectual property is a technical subject. Therefore, it is best to hire an arbitrator who has specialized knowledge of intellectual property. This is all the more true when technical problems such as computer programs, industrial designs, patents, etc. are disputed. When the parties can choose their arbitrator, they have the possibility of choosing one who has the necessary technical knowledge.
  • Expert determination: The parties in dispute can also seize an expert in the field of the dispute for expert opinion, appreciation, evaluation or decision with a view to settling a dispute. This expert can act as arbitrator and the resulting decision is binding on the parties.
  • International nature of intellectual property disputes: Intellectual property is inherently intangible and global, unlike other forms of property. It can be operated and transmitted globally instantly. This makes his rights violable internationally and disputes are cross-border. Therefore, intellectual property disputes are best resolved through the arbitration that is most suitable for international disputes.
  • Flexibility of arbitration: Arbitration, by its nature, is flexible. The parties can choose the arbitrator, the time, the course of the proceedings and the place of the proceedings. They can also choose the applicable law to govern the procedure. This is important given the international nature of intellectual property disputes. The parties should not be bound by the local laws of a disputing party.
  • The time involved and the purpose: Arbitration proceedings are tedious. The parties do not have to go through the tedious and formal procedure involved in a dispute. Arbitration is quick, fast and efficient. This is an advantage for intellectual property disputes which are technical and economic in nature and must be resolved on time. In addition, the contracting parties may decide that there will be no appeal against the arbitral award. This ensures that the dispute will be ended quickly, unlike a dispute where the parties by contract cannot prevent an appeal.
  • Confidentiality: Arbitration guarantees confidentiality between the parties. Intellectual property disputes can involve trade secrets and trade advantages. These are best kept confidential in order to avoid being exploited by the public. Arbitration also ensures that the business reputation of the parties is protected, which constitutes a business advantage.

Creation of special intellectual property courts

A Special Intellectual Property Court is an independent public judicial body that can function at the national or regional level to adjudicate intellectual property disputes, the enforcement of intellectual property rights and ancillary disputes. There has been a worldwide trend towards the establishment of specialized intellectual property courts, especially in developed countries. The establishment of a specialized court improves the quality of justice available to litigants. Indeed, the judiciary will have extensive experience and knowledge in intellectual property. This is different from non-specialized courts where the judiciary may or may not have extensive knowledge of intellectual property. Specialized courts are better equipped to keep pace and adapt to dynamic changes in the law. Another advantage of specialized courts is that they allow rapid and cost-effective processing of proceedings and can improve the consistency of case law. The establishment of a specialized tribunal or tribunal in the field of intellectual property in Nigeria will further strengthen the enforcement and protection of intellectual property rights in Nigeria and it is important in view of the fact that some disputes in this field intellectual property rights are criminal in nature and therefore not arbitrable.

Conclusion

Intellectual property plays a key role in the economy and development of a country. When these rights are properly protected, enforced and enforced, it has many benefits for the economy and society as a whole. Lessons have been learned from developed countries that have given intellectual property the paramount step it deserves. A crucial method of securing and enforcing these rights and effectively resolving disputes is through arbitration and the establishment of specialized intellectual property courts. Our laws should be amended to respond to dynamic trends in intellectual property, to allow the use of ADR, in particular arbitration, and special tribunals and tribunals should be put in place to ensure prompt and efficient adjudication of disputes. intellectual property.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought on your particular situation.

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