Nigerian intellectual property protection for small and medium-sized enterprise (SME) fashion designers in the digital economy

• Citation: (2022) IPLJ 38
• DOI: https://doi.org/10.47348/SAIPL/v10/a3
• Published date: 23 February 2023
• Pages: 38-65
• Author: Oluwasemilore, I.A.
• Date: 23 February 2023

38

https://do i.org/10.473 48/S AIPLJ/ v10/a3

NIGERIAN INTELLECTUAL

PROPERTY PROTECTION FOR

SMALL AND MEDIUM-SIZED

ENTERPRISE (SME) FASHION

DESIGNERS IN THE DIGITAL

ECONOMY

 

Senior lecturer, De partment of Commercial and Ind ustrial Law, Faculty of Law,

University o f Nigeria, Nigeria.

ABST RACT

         

growing viabi lity of small and medium-siz e enterprises (SMEs) in the fashio n industry,

particul arly online ret ail fashion store s, and the easy ac cessibility of the I nternet and

digital media . However, with intellect ual capital bei ng the hallmar k of the fashion

industr y, the nearly constant v iolation of intellect ual proper ty (IP) rights is a t hreat to

        

             

infri ngement cases which continue t o frustrate the m arketing of fashion brand s on social

media. This s tudy used a desc riptive and analy tical approach, relying on both pr imary

and secondar y data, to analyse an d assess the laws available for the prot ection of fashion

designers’ intel lectual works. T he study also con siders the var ious developments in

fashion IP prote ction in more adva nced countr ies, such as the Unite d States and in t he

European Union , and makes practical re commendations to supp ort the growth of IP law,

fashion legislatio n and the Nigerian fashion i ndustry in the dig ital economy.

KEYWORDS: Nigeria ; fashion entrep reneurs; digit al economy; intelle ctual prope rty

(IP); fashion legislation; social media

  

Nigeria has one of the largest fashion indu stries in Afr ica. Since professional

and dedicated pract itioners arrived and st arted to make t heir mark more

than two decades ago, the Nigeria n fashion industr y has seen remarkable

development. Given the intention of the Federal Government of Nigeria

to boost Nigeria’s non-oil exports, the fashion indust ry in Nigeria has t he

potential to become one of the major dr ivers of Nigeria’s economy in the

           

growth is achievable in the f uture, thanks to the govern ment’s recent decision

  

PhD (Obafem i Awolowo).

(2022) IPLJ 38

© Juta and Company (Pty) Ltd

https://do i.org/10.473 48/S AIPLJ/ v10/a3

to make the creative indust ry eligible for the ‘Pioneer Status Incentive’ (a tax

1

This growth ha s been fuelled by increa sed demand, but also by the rapid

growth and incre ased importa nce of the digital economy in Nigeria. Digit al

technology has had a major impact o n companies’ operations by simplify ing

buying and shipping proced ures and allowing compan ies to access a larger

market. While small a nd medium enterp rises (SMEs) may be slow to adopt

digital t echnology,2 the incre asing importa nce of social media and the digital

   

of SMEs is only a matter of time. Th is is undoubtedly tr ue for SMEs in the

Nigerian fashion indust ry, which experience intense compet ition. However,

this competition, coupled with t he intrusive and expan sive nature of digital

technology, has made intellectu al property (IP) theft considerably easier.3 The

            

complaining about the thef t of their designs by other, often much bigger,

designer s.4 Unsurpr isingly, this usually leads to un fruitf ul complaints on

social media and unr eliable measures to have their designs p rotected from

unauthorised replication.5 T he effect of the unrestrained copy ing and pilfering

  

growth of SME fashion designer s but also prevents the fashion industry from

reaching its ful l potential. This wil l result in reduced competit iveness in the

in du st r y.

This raises a much-neede d discussion on the level of IP protection available

to SME fashion designers in Niger ia. The concern is: ‘What pre cisely can a

designer protect?’ Many inventions in t he fashion business can be protec ted

and this art icle will set out the available options in detail. T he study will

suggest that the protect ion of industrial designs is t he best IP protection for

the fashion sector, especially becau se the fashion industry rep eatedly spends a



this substantial ex penditure, the legal regime to protect thes e designs remains

arcane and antiquat ed. The legal regime is unpopul ar in the industr y and,

in any event, is unhelpful a s it fails to take the peculia rities of the fashion

industry i nto consideration.

               

available at https://investmentpolicy.unctad.org/investment-policy-monitor/measures/3119/

federal-government-grants-pioneer-status-to-nigerian-creative-industry (accessed 30 August

2022).

2 I Apulu, A Latham & R More to ‘Issues of ICT adoption amongst SM Es in Nigeria’ (2013) 6(1)

International Journal of Management Practice 58–76.

3 L Palandri ‘Fashion as ar t: Rights and remedies in t he age of social media’ (2020) 9(1) MPDI

Laws, available at http s://doi:10.3390/laws9010009 (accessed 10 Decemb er 2021).

4 For instance, se e T Hudson ‘Black crochet brand E lexiay accuses Shein of ste aling their design’

Madamenoire (17 July 2021), available at https://madame noire.com/1233236/shein-elex iay/

(accessed 9 Janua ry 2022).

5 M Greenwal d ‘Influence r under fire fo r allegedly steali ng ideas from sma ller fashion blog: “I had

   yahoo!sports (19 Februar y 2021), available at https://sport s.yahoo.com/fashion-

blogger-calls-m ajor-influencer-152245013.html (accessed 9 Janua ry 2022).

NIGERIAN INTELLECTUAL PROPERTY PROTECTION FOR SMALL AND

MEDIUM-SIZED ENTERPRISE FASHION DESIGNERS IN THE DIGITAL ECONOMY 39

© Juta and Company (Pty) Ltd