There Will Be Fewer Copyright Infringement Lawsuits If Regulators Do Their Job – Adedipe


In this interview with GODFREY GEORGEEconomist and Chief Consultant of BAA Consult Associates Limited, Dr ‘Biodun Adedipe examines the case of trademark infringements in the commercial space and how the government can curb this threat to the intellectual property space

What is trademark infringement in branding?

Trademark infringement is the unauthorized use of a trademark. The keyword is “unauthorized”. The issue is not whether the use is authorized or not. Some people see a brand they like and simply adopt the name without the authority of the actual brand owner. Sometimes a brand owner would receive calls from another country asking if their company was the one that authorized a transaction that another company that adopted that name had initiated. Often you will find that there is confusion along the line.

When we talk about counterfeiting, it’s best to draw a line or background on what a trademark actually is. There are four perspectives from which I would look at this. In a generic sense, there are three fundamental points. It can be a symbol that represents a brand. It can also be a word or a combination of words. This means that a trademark is a symbol or a combination of words that uniquely defines the entire brand or company. This means that it represents that particular company or its products. In matters of business law, it goes a little further. Here, this symbol should be recognizable as identified solely with the company or its products. In economics, we consider it broadly as an easily recognizable symbol, word or group of words that designates a specific product. We look at this beyond the company but also with the product. Because in economics, the speech is that a company has a range of products, and each of these products can be unique in its own way. In fact, when we do the analysis, we usually divide the commodities into cash, cows, stars, and dogs, which represent different things. The main thing here is that a brand is recognizable.

If you take a brand like Nike and come across the phrase “Just do it”, you’ll know it’s recognized around the world as an identifiable Nike phrase. Once there is a basic understanding of the brand, it would be quite easy to negotiate an infringement case from three angles. What is the nature of the mark? What is identity? The third point is interpretation, which is the final point.

If another brand can simply adopt an existing brand’s brand without the permission of the person, don’t you think that can open the door to fraudulent practices?

Exactly. As a business owner, if you receive a call from a bank, for example, who may have confused your brand name or brand with someone else’s for some reason, this may lead to a confusion problem. much more important. This can further lead to fraud. That’s why we say that any “unauthorized” use of a mark by anyone other than the original owner of the mark would constitute infringement.

In light of your explanation, what can you say about the lawsuit filed by Coca-Cola accusing Pop Cola of brand “cloning”?

A company’s brand is its unique identity. When we talk about unique identification, when you choose a brand, there must be certain things that will allow you to identify that entity, brand or individual. If one of these elements is reproduced in another mark, it is a pointer. When you have many attributes represented in another brand, it becomes a commercially appropriate argument for cloning.

The World Economic Forum produces what it calls a country competitiveness assessment index every year. It is a basis on which global investors can decide where to put their money. There are 12 factors that speak of business innovation. Innovation is not about copying someone else. It’s not cloning. This means that you should come up with something new from one or two points of view.

How far has Nigeria performed in this area?

Are we encouraging innovation in Nigeria? This is a very big problem because when we talk about research and development, Nigeria is not doing well. In light of COVID-19 impacting the world’s economies, a survey was conducted in 2021 – the third year of the pandemic – when many of the world’s economies recovered and grew strongly. This survey showed that companies that had invested in research and development, especially with regard to deepening digitalization, were not only able to emerge from the stress of COVID-19, but also to greatly increase their profits. If you want to interpret this in simple terms, if a company has invested in research and development that has yielded innovative ideas and products, ideally the reward or return on that investment should accrue to that company. If someone else copies what they did, that means the return is split between the company that invested and the one that didn’t. This means that if we encourage companies in research and development, you must provide an environment that protects the return on these investments for investors without other companies benefiting from it. This is a major challenge for Nigeria. There is a ranking of countries in this regard. Which country has the best protection for intellectual properties? Which countries have weak control? That’s why in Nollywood there are a lot of these problems. Someone does something; another wears it and changes a thing or two and takes it there.

The thing about Nigeria is that we have the relevant government agencies in charge of these things. We have the Nigerian Copyright Commission, which has that primary mandate. In the pharmaceutical space, the National Agency for the Administration and Control of Food Drugs is there to play this role. We have other departments whose responsibilities fall under this jurisdiction. Nigeria is also a signatory to the World Intellectual Property Organization treaties. To that extent, we have all the necessary laws. Now the problem with Nigeria now is the enforcement of these laws which are already available. If some of these laws are properly applied, many cases will not necessarily need to go to court.

There is also an issue of confusion between the two brands – Coca-cola and Pop Cola – in their appearance with the unique ribbon design, color among other issues. What does this bode for Coca-Cola as a brand?

This is a very important question that you raise here. In the scheme of things, what we’re saying is that ultimately when you bring a product to market, the idea is to show that potential buyer that you have a solution to their problem. This is called the base product. In the case of Coca-Cola and Pop Cola, which is a kind of drink, the only way to prove the difference is through taste. It’s like what Americans call the “cola wars.” The second key element is the packaging, ie the way the product is presented to the consumer. There is something we call the “perfect substitute” in economics, where you can buy one thing and not need to buy another. If I buy a bottle of Pop Cola, mistaking it for Coca-Cola because of the design, I may not need to buy Coca-Cola again, because my thirst craving has been satisfied . They are mutually exclusive. For the consumer, the problem will not be the product, but the packaging, which can lead to confusion. If I introduce myself Coca-Cola and Pop Cola, they are alike to a very large extent. As a consumer, of course, there would be some confusion. A confused consumer may start saying, “Maybe it’s another variation of Coca-Cola. Maybe Coca-Cola is trying to differentiate itself to align with different market segments. Maybe the price is different because the producer wants to appeal to a particular segment of the market. »

The confused consumer would give it an interpretation, authenticate this product and choose one. Once there is this confusion and they repeatedly choose which one they associated with the source or origin, the brand owner will start losing market share. As it loses market share, the other grows and gains as well. It is possible that more people will be attracted to the one they consider cheaper. If this happens, it may appear that the market for this product is growing, but the growth would be disorderly. It is even much more fundamental when we talk about finance and banking. When this continues in a country over time, it gives the impression to international investors that it is not a country you can go to to do business and have your brand and finances protected.

How can this problem be eliminated?

If one business infringes a trademark on another, the original business has the right to sue. Judgment would not come with feelings but with the full scope of the law and the arguments of lawyers on both sides. This is a major challenge that we have faced for many years. If government agencies, whose job it is to protect the rights of these brands, perform their duties without feelings, then we would have fewer problems on our hands. If these institutions are strong, it inspires confidence in local and foreign investment. If trademark infringement occurs and the entity committing the infringement gets away with it, it doesn’t end there. What it sends is a message that can become an incitement for other entities to also violate the trademarks of others.

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