Counterfeiting and piracy: Challenges to effective protection of intellectual property rights in Nigeria

• Date: 24 May 2019
• Author: Okojie, A.E.
• Pages: 115-142
• Published date: 24 May 2019
• Citation: (2017) IPLJ 115

COUNTERFEITING AND PIRACY:

CHALLENGES TO EFFECTIVE

PROTECTION OF INTELLECTUAL

PROPERTY RIGHTS IN NIGERIA



Associate Professo r, Department of Business Law, Facult y of Law, University of

Benin, Nigeri a



Senior Lecture r, Department of Business Law, Facult y of Law, University of Benin,

Nigeria

  

Intellectual prope rty law is a legal concept that prote cts the creation of

human ingenuity. The World Intellectual Prope rty Organ isation (WIPO)1

             

and artistic works , and symbols, names and image s used in commerce.

Indeed, intellect ual property c onstitutes creative works and i nventions

that are the mani festations or expression of ideas deserv ing protection as

of right. Intellectual pro perty rights t herefore exist to protect the works of

creators and in novators from misappropriat ion, misapplication or copying

by unauthorised par ties. However, intellectual propert y also touches on

a wider economic dimension and on d evelopment and consumer interests,

particularly as it relate s to counterfeiting, pira cy and institutional i nability of

intellectual prope rty holders to enforce their rights.

This paper exami nes the emerging challenges to ef fective intellectual

property r ights in general in Nigeria, but w ith a tilt towards copyright. T his

is a particularly wor risome topic, as the theft of intellect ual property, even

with its serious economic i mplications in national development, is yet to be

equated in the public mi nd wit h other serious offences against p roperty, such

as fraud, theft or t respass. Intellect ual property i nfringement unde rmines

creativity and in novation, which are invariably global establishe d drivers of

economic growth and comp etitiveness. It often violates the global economy

 

 

1 WIPO Publication No 450 (E), availa ble at http://www.wipo.int/f reepublication s/en/

intproper ty/450 (accessed on 6 November 2016).

115

(2017) IPLJ 115

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in relation to employment, health and safet y legislation.2 On a transn ational

scale, counterfeiting and pi racy regularly involve and sustain organis ed crime.

           

counterfeiting, pira cy and enforcement. According to Rollin a nd Boyce,3



furthe r reinforced by the Black’s Law Dictionary4

the ‘unlawful forger y, copying or i mitation of an item … or the unauthor ized

possession of such an item with the intent t o deceive or defraud by claiming or

  

producing or selling an item t hat displays a reproduction of a genuine

trademark , usually to deceive buyers into thi nking they are pu rchasing

 5 In relation to copyright and pir ated goods, TRIPS6

 

[A]ny goods which are copies mad e without the conse nt of the right holder or per son duly

authorized by t he right holder in the c ountry of produ ction and which are m ade directly

or indirect ly from an art icle where the maki ng of that copy would have const ituted an

infri ngement of a copyright or a relate d right under the law of the cou ntry of importat ion.

In like manner, TR IPS7 

[G]oods, including pa ckaging, bearing w ithout authorization a tr ademark which is identical

to the trade mark validly regist ered in respect of su ch goods, or which can not be distingui shed

in its essentia l aspects from such a tr ademark, and which there by infringes the rig hts of the

owner of the tra demark in question und er the law of the country of i mportation.

For the International Tradema rk Association (INTA),8 counterfeiting is the

illegal production and sale of goods, includi ng packaging beari ng without

authorisation a tra demark which is identical to a validly registered tradem ark

or which cannot be disti nguished from such a tr ademark. This is usu ally

represented in goods i llegally bearing registered trade marks. Also, according

to the US Trademark Counterfeiti ng Act,9 counterfeiting is a spur ious mark



with or substantially i ndistinguishable from a mark in use or r egistered on the

                   

      

on displaced ec onomic activity, investment , public fiscal losses and cr iminal enforcement an d

came to the conclu sion that these costs cou ld reach an estimated US$1.9 tri llion by 2022. Taken

together, the negat ive impacts of counte rfeiting and pirac y are projected to dr ain US$4.2 trillio n

from the global e conomy and put 5.4 million legit imate jobs at risk by 2022, avai lable at https://

iccwbo.org/ (access ed on 29 July 2017).

3 M P Rollin and R N Boyce Criminal law 3 e d (1982) 82.

4 B A Garner (ed) Black’s law dictionary 10 ed (2014).

5 Ibid.

6 TRIPS Agr eement, available at ht tp://www.wto.org/englis h/docs_e/lega l_e/27-trips.p df

(accessed on 10 August 2017).

7 Article 51 of TRI PS (n6).

          

aspx (accessed on 21 November 2016).

9 Trademark Cou nterfeiting Act of 1984, 18 USC s.2320. See al so J S Jenning ‘Tradem ark

  Journal of Crimin al Law and Criminolog y 52.

116 South African Intellectual Property Law Journal (2017) 5

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