Contents

Copyright

Trade Mark

Patent

Copyright

Ayo Bankole Jnr, Ecobank Set To Settle Court Action

The ongoing court action between lyricist/composer; Ayo Bankole Jnr and the Nigerian subsidiary of a regional bank; Ecobank Nigeria Plc is set to be settled by the parties. We reported the case and proceedings in a previous edition of this newsletter (Volume 4 Issue 3).

It will be recalled that Bankole was peeved by the fact that the bank had been using his composition and performance for its radio and television advertising jingle. Bankole also alleged that the same piece of music was used for the telephone answering service of the bank.  The parties have agreed to terms of settlement and the said terms have been filed in the court. Apart from monetary compensation, the parties agreed that future use of the said work will be negotiated and agreed upon by the parties.  Mr. Bankole asserted while the case was on, that he was out to prove a point on the unlawful use of musical compositions by corporate organizations in Nigeria. 

Reprographic Rights Society Grants First Licence 

Reproduction Rights Society of Nigeria (REPRONIG), Nigeria’s collecting society for reprographic rights has signed its first license agreement. The license was signed on Wednesday, 20 June 2007 in Otta, Ogun State of Nigeria between the Society and Covenant University; one of the new generation privately-owned universities in Nigeria. REPRONIG was licensed to operate as a collecting society for reprographic rights in late 2003 with funding support from Kopinor, the reprographic rights organisation of Norway. The license is REPRONIG’s first since it began operation in late 2003.

In signing the agreement, both parties stressed the need to recognize, protect and reward intellectual property as it is being exploited in Nigeria especially in tertiary institutions. Prof. Aize Obayan, CU vice-chancellor stressed that Covenant University desired to be associated with the recognition of Intellectual Property and that REPRONIG provided the platform for dialogue and transparency in achieving this. In his remarks, Otunba Yinka Lawal-Solarin, REPRONIG’s Chairman said he was delighted to be part of an epoch making event. He said that by the action of the management of Covenant University the school had carved out a place for itself in the annals of history. One of the biggest threats to Intellectual Property in Nigeria is the indiscriminate and large-scale photocopying of copyright-protected materials in tertiary institutions. Photocopying has become so widespread that it poses serious threats to authors, creators as well as stakeholders in the industry. A reprographic licence, therefore, grants the permission or consent of the author or creator  of the work to the licensee whereby the latter  can legally photocopy specified portions of the work without fear of infringing on the rights of the copyright owner.

Federal High Court, Once Again, Overrules Guinness’ Counsel Application In MCSN’s Suit.

Counsel to Guinness (Nigeria) was overruled on their application for stay of proceedings in the suit brought by Musical Copyright Society of Nigeria (MCSN). The suit (reported in Volume 4 Issue 4 of this newsletter) was instituted by MCSN with allegations of breach of copyright by Guinness. MCSN alleges that being the owner of the musical works; subject matter of the suit its licence should have been obtained by Guinness before the works were used in concerts organized by Guinness to promote its products. Counsel to Guinness has initially objected to the suit being heard on the ground that MCSN not being a licensed collecting society could not institute the action nor is it entitled to damages being sought.  MCSN replied that     its action was brought as owner, assignee and exclusive licensee and  not as a collecting society and more so the Court of Appeal in MCSN vs Adeokin (unreported Suit NO CA/L/498/97) held that MCSN was entitled to institute action for breach of copyright of its musical works whether licensed as a collecting society or not. Guinness then sought to appeal on that ruling and thus asked for a stay of proceedings.

 The Federal High Court (Coram: Shuaibu J) refused the application and held that the court was going to go on with the trial. The matter was subsequently adjourned for trial.  Guinness’s counsel however has applied for the same relief at the Court of Appeal and no date has been given for the hearing of the Application at the Court of Appeal

U.S. Jails Leader of Net Piracy Gang

A Briton has been jailed for 51 months after pleading guilty to software piracy charges in the United States. Hew Griffiths from his Australia home led the DrinkorDie piracy group, which specialized in cracking protection codes on software, music and movies. The U.S. department of Justice (DoJ) estimated that DrinkorDie created and spread more than $50 million (25 million pounds) of pirated goods. DrinkorDie was broken up in 2001 following a series of raids co-ordinated by the DoJ. Although arrested several years ago, Griffiths has spent the last years in an Australian jail fighting extradition to America to face charges. The extradition was one of the first for an intellectual property crime.

“Whether committed with a gun or a keyboard, theft is theft,” said U.S. Attorney Chuck Rosenberg, in a statement. Sentenced to 51 months on a charge of “conspiracy to commit criminal copyright infringement”, Griffiths is likely only to serve a further 15 months in jail because of the time he has already spent incarcerated in Australia. DrinkorDie is thought to have been founded in Russia in 1993 and offered people cracked version of programmes from Microsoft, Adobe, Autodesk, Symantec, Novell and many others.

Under the banner of Operation Buccaneer, 70 raids were carried out to dismantle the groups. Most raids took place in the U.S. but law enforcement authorities in United Kingdom, Finland, Norway, Sweden and Australia also took part. More than 30 people are known to have been jailed as a result of arrests made during the operation.

Trade Mark

Service Mark Protection introduced to Nigeria
It has been announced by the Nigerian Trade Mark Registry that service marks are now registrable in Nigeria. These    marks are such that are for the protection of goodwill and reputation of owners of such marks in respect of the service(s) for which they were registered. This kind of marks has been registrable all over the world but was not so done in Nigeria. The marks were given this new status and protection by virtue of a Ministerial order. Indeed, the Registrar is receiving and processing service mark applications.

The existing Act, dated 1965 and modelled on the United Kingdom 1938 law, related only to trade marks for goods. The Registrar and Minister, mindful of Nigeria's responsibilities under the TRIPs Agreement, have determined to create additional classes for services. It was originally thought the new classification would be similar to that adopted by the UK in 1984 but we believe the authorities will now follow the current, 9th, edition of the International (Nice) Classification.

The change is intended to be formalized by publication of amending regulations in the Federal Gazette, under the section of the Act empowering the Minister to make regulations for the purpose, inter alia, of classifying goods. The inclusion of services is justified by the authorities on the basis that services are "intangible goods".

There are some concerns about the innovation's validity in strict law. First, it is argued that services cannot realistically be described as "intangible goods", so the new regulations could be ultra vires. Second, the Act states that no such regulations shall have effect until published in the Gazette and no Gazette Notice has appeared; so even if the regulations are valid in law, they are not yet in force. The new Trade mark Registrar at a forum of the Intellectual Property Law Association of Nigeria on 19^th June 2007 asserted that the Gazette was ready and would be issued in a matter of days. 

Nevertheless, it is evidently the will of the government that service marks shall be registered. Substantive law reform is in the pipeline and it is hoped that the new Act when finalized will recognize, and ratify so far as necessary, registrations done under the current, proposed regulations. Pragmatically, many practitioners are encouraging clients to file service mark applications now, subject to warnings about the doubts expressed above.

 Patent 

LG Electronics Files Patent Lawsuit Against Hitachi

Seoul, Korea, June 18, 2007 – LG Electronics (LG), a leading player in the global flat panel display market, filed a countersuit against Hitachi America Ltd., Hitachi Ltd. and Fujitsu Hitachi Plasma Display Ltd., seeking an injunction on patent infringement of LG’s PDP technology and monetary compensation. LG’s claims include four patents related to methods for driving plasma display panels and three patents related to apparatus and cell structure of plasma display panels.

“Intellectual property is one of LG’s essential assets, which we will always uncompromisingly protect”, said Jeong Hwan Lee, Executive Vice President and Head of LG Electronics Intellectual Property Center. “Japanese firms are filling more and more lawsuits as competition in the global display market has increased dramatically. We will proactively deal with the situation based on our patented and patent-applied-for technologies”.

LG and Hitachi have been trying to reach a settlement regarding patents related to PDP technologies since 2005. Earlier in April, Hitachi filed a suit against LG at the U.S. District Court of Texas for patent infringement on similar technologies, claiming they were Hitachi’s proprietary technologies.

LG’s latest filing is a countersuit against this claim. The case is a result of a difference of opinion over the proprietary nature of each company’s PDP technologies. LG has been actively developing PDP technologies since 1990. It holds approximately 2,300 international patents for PDP technologies, including methods for driving plasma display panels and apparatus and cell structure of plasma display panels. The company also has applied for about 6,000 patents for PDP technologies nationally and internationally.

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