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Intellectual Property Rights Enforcement In Nigeria: Regulatory Agencies To The Rescue

INTRODUCTION

The Nigerian government has continually sought the development of the Nigerian economy through both external and internal participation. Consequently, there has been a marked development in the economic climate leading to the growth of Foreign Direct Investment for small, medium, and large scale business ventures as well as large conglomerates. This is evidenced by numerous international and local organizations seeking increased channels of trade through manufacturing, importation and exportation of a large variety of goods. The increase in commerce necessitates that the investments and the attendant IPRs are thoroughly protected under the law.

Intellectual Property Rights (“IPR” / “IPRs”) are assuming increasing importance in every facet of life today, beyond their original position, as a result of new developments in modern science and technology as well as challenges arising from the competitive nature of international trade. Nations across the world have indeed been compelled to pay greater attention to the development of intellectual property, as well as its protection.

Nigeria’s status as a favorable destination for foreign direct investment and place where local creative talent can flourish is in jeopardy, due to the activities of individuals that place no value on Intellectual Property (“IP”).01K.M. Waziri, Intellectual Property Piracy and Counterfeiting in Nigeria: The Impending Economic and Social Conundrum, 4 U. Abuja J. Pol. and Law 196 (2011).

The incidence of infringement and violation of IPRs especially in the nature of counterfeiting and piracy has been on the increase in Nigeria. Activities of infringers/counterfeiters have deprived many producers, manufacturers, artists, marketers and stakeholders of the benefits of their creativity, and they have prevented the industry from more-rapid financial growth and development.

Although Nigeria currently has a legal regime in place to curb, or at least reduce, this menace, it has only the barest minimum of effects, and more still needs to be done to ensure effective enforcement and stay in tune with the best international practices. IPRs are governed by the Trademarks Act,02Trade Marks Act (1967) Cap. (T13), Laws of the Federation of Nigeria, 2004. the Patents and Designs Act,03Patents and Design Act (1990) Cap. (P2), Laws of the Federation of Nigeria, 2004. the Merchandise Marks Act,04Merchandise Marks Act (1956) Cap. (M10), Laws of the Federation of Nigeria, 2004. the Federal High Court (Civil Procedure) Rules,05Federal High Court (Civil Procedure) Rules (2009), S.I. 3 (Nigeria). and the Copyright Act,06Copyright Act (1990) Cap. (C28), Laws of the Federation of Nigeria, 2004. in addition to the principles of common law.

IPRs are protected through the registration of rights with the relevant registries and regulatory bodies established by the Nigerian Government, such as the Trademarks, Patent and Designs Registry,07The registry is an agency operating under the Commercial Law Department of the Federal Ministry of Commerce. the Nigerian Copyright Commission (NCC), as well as other related offices, such as the National Office for Technology Acquisition and Promotion (NOTAP), the Standard Organization of Nigeria, and the National Agency for Food and Drug Administration and Control (NAFDAC). All these offices run their independent registries and often interface in the discharge of their mandate.

IPRs in Nigeria are enforced through the court system, through tribunals such as the Trademarks and Patent Tribunal, and through various regulatory bodies such as the Nigerian Customs Service (NCS), the Nigerian Immigration Service (NIS), the Consumer Protection Council, and the Nigerian Police (for counterfeiting claims). Section 251 (1) (f) 1999 Constitution of the Federal Republic of Nigeria vests exclusive jurisdiction in the Federal High Court over disputes relating to copyright, patent, trademarks and passing-off, industrial designs and merchandise marks. In addition to its original jurisdiction, the Federal High Court sits in appeal over the proceedings of the Tribunals established by the Trademarks Act and the Patents and Designs Act. The Court of Appeal,08Constitution of Nigeria (1999), § 239. and ultimately the Supreme Court, exercise appellate jurisdiction in relation to matters emanating from the Federal High Court.

Today, Nigeria is facing challenges in the process of strengthening its intellectual property system. The areas of concern for Nigeria specifically involve establishing an appropriate legal and institutional framework, creating awareness on the importance of IPR, enforcing IPRs, and securing the future of the Intellectual Property system in general.

In common parlance, “enforcement” connotes the act of ensuring that a system is adhered to or obeyed. In relation to IPRs, the meaning of “enforcement” ranges in scope, stretching from registration and investigation all the way to final administrative or judicial actions. A survey conducted by the World Intellectual Property Organization’s Advisory Committee on Enforcement09U.N. WIPO Advisory Committee on Enforcement, 8th Sess., U.N. Doc. WIPO/ACE/8 (Dec. 19–20, 2012). indicated that an under-estimation of the value of IPRs has contributed to ineffective enforcement overall. IP assets are intangible in nature and are therefore generally overlooked when classifying business assets. This is especially true in Nigeria and surrounding nations, where such assets are all too-infrequently recognised as valuable income-earning assets for the company.

Assessment of the value of industries based primarily on IPRs in terms of a percentage of the Gross Domestic Product would lead to an appreciation of the value of intellectual property rights in terms of a country’s economic environment, as well as in respect to economic, social and cultural growth and development.10Michael Blakeney, Guidebook on Enforcement of Intellectual Property Rights (Apr. 2005), http://trade.ec.europa.eu/doclib/docs/2005/april/tradoc_122641.pdf.

Enforcement of IPRs is an integral part of a developing country’s economic development strategy.11UNCTAD-ICTSD Project on Intellectual Property Rights and Sustainable Development, Intellectual Property Rights: Implications for Development, (2003), http://www.iprsonline.org/unctadictsd/Policy%20Discussion%20Paper/PP_Overview.pdf. There are several reasons why a country would wish to enforce IPRs. In developed countries, there is good evidence that intellectual property is, and has been, important for the promotion of invention in some industrial sectors, particularly the pharmaceutical, chemical and petroleum industries as well as biotechnology and some components of the information technology space.

For developing countries, the nurturing of indigenous technological capacities through the intellectual property system has also proved to be a key determinant of economic growth and poverty reduction. The enforcement of IPRs thus protects local commercial and industrial innovation, as well as encouraging technology transfer and foreign investment.

The enforcement of IPRs has gained prominence in recent years on the global trade and intellectual property agenda. A number of initiatives and developments in this area at the global, regional and bilateral level carry wide-reaching implications for the regulation of a country’s economy.

Concerted efforts to enforce global IPRs continue to focus intensely on the developing countries of Africa in particular. These efforts have spawned a complex, and ever-evolving, system of legal mechanisms, encompassing international and regional conventions, World Trade Organization dispute settlements, bilateral and multilateral treaties, decisions of national courts and regulatory bodies, and a welter of local laws and border controls.

Enforcement of IPRs in Nigeria should be greatly facilitated as this will further improve the country’s image abroad, develop confidence in the Nigerian investment climate, and increase the inflow of business activities to the country. The major cost to developing countries in which piracy, infringement and counterfeiting thrives is the loss of access to foreign investment, due to investor concerns that the intellectual property produced by the relevant investment will be stolen by others.

This discouragement of investment has the obvious short-term effect of reducing taxes and revenues and the longer-term effect of stifling economic development. More specifically, the establishment of key industries in developing countries will be difficult in the absence of effective intellectual property laws or enforcement.

TRIPS AGREEMENT PROVISION FOR THE ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS

In order to keep up with global economic trends and challenges relating to intellectual property, Nigeria has signed up to various international treaties and conventions with the intention of creating an avenue for the rapid development and appreciation of intellectual property, brand names and quality products as an intangible business asset.

Nigeria is a signatory to the Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) which seeks to establish new rules and disciplines concerning the provision of adequate standards and principles concerning the availability, cope, effective and appropriate means for the enforcement of trade-related IPRs amongst others.

There is a need however to domesticate the relevant treaties into Nigerian laws for them to have a force of law. Presently, several treaties cannot be enforced without it being ratified into Nigerian laws as provided by Section 12 of the 1999 Constitution of the Federal Republic of Nigeria:

“No treaty between the Federation and any other country shall have the force of law to the extent to which any such treaty has been enacted into law by the National Assembly”.

Part III of the TRIPS Agreement12Agreement on Trade-Related Aspects of Intellectual Property Rights arts. 41–61, Jan. 1, 1995, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299 (1994) [hereinafter TRIPS Agreement]. obliges Members to establish a comprehensive enforcement regime so as to permit effective action against any act of infringement of IPRs covered by the Agreement. These procedures also require “expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.”13TRIPS Agreement art. 41.

In relation to the IPRs covered by the TRIPS Agreement, members are enjoined to make available civil judicial procedures for the enforcement of those rights to rights holders.

In cases involving infringements of IPRs, it is important that courts be empowered to award damages that both compensate the right holders and deter potential infringers from engaging in illegal activities.14TRIPS Agreement art. 45. There is also provision for Ancillary orders such as injunction, delivery up for destruction, corrective advertising, and account for profit amongst others.

A key feature of the TRIPS Agreement is the member obligation to introduce border measures for the protection of IPRs. Given the concern about the trade in pirated and counterfeit goods which precipitated the interest of GATT15The General Agreement on Tariffs and Trade (GATT) is a multilateral agreement regulating international trade. in intellectual property protection, it was probably to be expected that the architects of the TRIPS Agreement would look to the customs authorities to assist in the interdiction of this trade. It is obviously more effective to seize a single shipment of infringing products while they are in transit, rather than to await their distribution in the market. Section 4 of Part III establishes a scheme for suspension of the release into circulation of suspected counterfeit trademark or pirated copyright goods. This suspension may be on the application of a right holder or pursuant to ex officio action by the border authorities.

FACTORS WORKING AGAINST EFFECTIVE ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS IN NIGERIA

A survey conducted by WIPO in 2002 indicated that the principal barriers to eliminating counterfeiting and piracy did not exist in the substantive law, but rather in the remedies and penalties available (or not available) to stop and deter counterfeiting and piracy. The ineffectiveness of enforcement systems was attributed, in many cases, to a lack of human resources, funding and practical experience in IP enforcement of relevant officials, insufficient knowledge on the side of right holders and the general public, concerning their rights and remedies, and systemic problems resulting from insufficient national and international coordination, including a lack of transparency.

Non-Evolving Laws:

The dates of enactment of principal legislations relating to IPRs in Nigeria clearly show that the laws were made long ago at a time that many of the current day development were not in the consciousness of the legislators. The result of the use of these outdated legislations is that the protection offered in Nigeria is substandard in comparison to the updated laws now operating in other jurisdictions. Nigeria’s laws are craving for substantial amendments.

Inadequacies of the Judicial Enforcement:

Delays in the judicial system and other barriers to justice also discourage intellectual property litigation and enforcement in Nigeria, in several areas.

There are inadequacies in the system of civil judicial procedures and remedies, including injunctions for a party to desist from an infringement, the attribution of adequate damages and expenses, destruction or removal from the channels of commerce of infringing goods, materials or machinery used in the production of such goods and the closure of facilities where production or trade of infringing goods take place. Remedies are available in the law, but are expensive to obtain and are easily-circumvented by the defense.

There are inadequacies in the system of provisional or temporary protective measures to prevent, in a prompt and effective manner, the infringement of an IPR from occurring and/or to preserve relevant evidence in regard to an infringement (such as raids, seizures, suspensions of release into trade channels, provisional closing of facilities, etc.), including, in urgent cases, measures issued ex parte (at the request of one party and without previous notification of the other party).

There are inadequacies in the system of criminal procedures, leading to the imposition of deterrent penalties such as fines or imprisonment terms, seizure, forfeiture and destruction of the infringing goods and machinery or materials used in the production of such goods, closing of retails or outlets, etc. Criminal procedures are seen as deficient.

There are inadequacies in the system of penalties for infringements, piracy and counterfeiting in Nigeria, which are still very much outdated. It is important to review this to serve as deterrence to prospective infringers. An upward review of the fines will help the law to be properly administered in areas where there has been a breach of the same and it also would have been seen as justice well served.

There is an overall lack of transparency in the enforcement system, which means that rights holders are generally in the dark about ongoing investigations and cases.

There is little public awareness or understanding of the intellectual property laws in the country. Existing laws are not readily accessible even to the educated class. The average man on the street is also ignorant of touted benefits of intellectual property protection. The Nigerian copyright commission admits that lack of awareness about the laws and administration of copyright constitutes “a major inhibition to the development of a sound copyright system in Nigeria.” Meaningful public education at the grassroots level must form a critical component of intellectual property enforcement in Nigeria.

Finally, there is a shortage of funds, computer facilities, and manpower, as well as inadequate understanding and appreciation among regulatory officials, distributor networks, and consumers of the benefit of IPRs, contribute to the weak IPR enforcement climate.16WTO Secretariat, Nigeria: Trade Policy Review, WTO Doc. WT/TPR/S/147 (May 11, 13, 2005).

REGULATORY BODIES TO THE RESCUE:

Commercial, health, and safety exigencies have necessitated the establishment of various regulatory agencies whose function are primarily to ensure that products of all types meet the requisite minimum standards and are safe for human use and consumption. Some government regulatory agencies have functions which greatly impact IP, and they can be used to enforce IP rights indirectly.17Obafemi Agaba, Filling the Vacuum of Intellectual Property Rights Regulatory Enforcement: Nigerian Customs Service to the Rescue, Business Day (Nigeria), May 14, 2009.

While the main statutory functions of these government agencies are not to regulate or enforce IPR, they have nevertheless proven to be an effective, indirect way to curb the menace of illicit trade in counterfeit goods. Thus, in addition to civil and criminal court actions which are available to a brand owner seeking redress for the breach of his IPRs, the brand owner may also decide to go through the administrative/regulatory route to enforce his IPRs.

Brand owners have become more interested in adopting the regulatory approach, as a result of frustrations with the traditional court system. Such frustrations are borne out of the undue delay and long time to fully determine a case, coupled with ineffective enforcement of the final court orders. In criminal actions, the prosecuting officers are not well trained to handle such a specialized area of law, and are often not diligent enough in prosecuting cases.

Given the expense and complexity of the judicial enforcement of IPRs, administrative remedies are often a less expensive solution. The shortcomings with the court system have made regulatory intervention a more attractive way of enforcement of IPRs, albeit indirectly.

Such regulatory agencies include the National Agency for Food and Drug Administration and Control, the Nigeria Copyright Commission, the Nigerian Customs Service, the Nigerian Police, and the Nigerian Intellectual Property Office, all of which will be discussed in more depth below.

(a) THE NATIONAL AGENCY FOR FOOD AND DRUG ADMINISTRATION AND CONTROL

The National Agency for Food and Drug Administration and Control (“NAFDAC”) is a body corporate established by the NAFDAC Act.18National Agency for Food and Drug Administration and Control Act (1993) Cap. (N1), Laws of the Federation of Nigeria, 2004. The body is empowered under the enabling law to regulate and control the importation, exportation, manufacture, advertisement, distribution, sale and use of food, drugs, cosmetics, medical devices, packaged water and chemicals, generally known as regulated products.

The Agency is mandated to undertake the registration of regulated products. Related to this, is the recognition of IPRs in evaluation of data and products submitted for marketing authorization.
Under the provisions of various regulations and related guidelines on registration, the submission of evidence of ownership of trademark is a condition precedent for the registration of branded regulated products. Where an infringed trademark is used in respect of a product that is within the purview of NAFDAC powers, a petition can be presented to NAFDAC in that respect.

Having recognized counterfeiting and circulation of fake products as a health issue as well as an infringement of IPRs, NAFDAC has a police squad responsible for ensuring that its regulations and guidelines are adhered to, as part of the overall NAFDAC Enforcement Directorate. The police squad are authorized to arrest any persons suspected of committing an offence under the national law on counterfeiting and collation of files for prosecution by the Agency’s legal team.19D.N. Akunyili, Consideration of Intellectual Property Rights in Regulation and Control: Activities of the National Agency for Food and Drug Administration and Control, U.N. WIPO Advisory Committee on Enforcement, 3d. Sess., U.N. Doc. WIPO/ACE/3/9 (May 15–17, 2006).

Part of the commission’s most effective strategies in combating product counterfeiting and ensuring effective protection of IPRs are public enlightenment campaigns. Both enforcement agencies (NAFDAC and NCC) are perceived as increasing the public profile of counterfeiting. NAFDAC has seized and destroyed increasingly large quantities of counterfeit products over the last three years. However, more needs to be done, in particular in terms of providing adequate levels of enforcement resources and in prosecuting identified counterfeiters by the courts.

(b) THE NIGERIA COPYRIGHT COMMISSION

The role of the Nigeria Copyright Commission (“NCC”) in IPR enforcement is limited to works which are eligible for copyright protection under the Act. It is a unique agency responsible for the enforcement of the Copyright Law in Nigeria, carrying out raids and seizing items that are pirated, prosecuting perpetrators and convicting them with copyright infringement.

Although Nigeria has a relatively strong copyright law, and although the NCC takes its mandate seriously and has launched many commendable programs, enforcement of existing legislation remains a challenge.

Efficient enforcement of copyright is a critical element in enabling the future development of Nigeria’s creative industries. Since its establishment in 1989, following implementation of Copyright Decree No. 47 of 1988, the NCC has worked tirelessly to clamp down on piracy. Campaigns such as the Strategic Action Plan against Piracy and the Copyright Litigation and Mediation Program, launched in 2005, are testimony to this. Since December 2010, the NCC has intensified its copyright enforcement and anti-piracy activities. The underlying objective is to minimize piracy levels in order to provide an environment conducive to the growth of legitimate copyright industries in Nigeria, an environment in which the rights of creators are respected.20Afam Ezekude, Nigeria’s Anti-Piracy Drive Yields Results, WIPO Magazine (June 2012), http://www.wipo.int/wipo_magazine/en/2012/03/article_0004.html.

In December 2010, the NCC launched a campaign for collective action to tackle piracy on all fronts. The aim is to send a strong signal to piracy syndicates around the world that it is no longer “business as usual” in Nigeria. The broad-based program seeks to build a proactive, intelligence-based copyright enforcement and regulatory system by creating an expanding network of strategic partnerships and alliances with key stakeholders at home and abroad. These include private sector stakeholders, the right holder community and sister regulatory and enforcement agencies.

On the domestic front, the NCC’s close cooperation with the Nigeria Police Force (NPF) is critically important, especially in terms of ensuring the safety of the Commission’s unarmed Copyright Inspectors during anti-piracy raids across the country. The Nigeria Customs Service (NCS) also plays a key role in tracking down infringing goods at entry ports and land borders, making it possible to identify and seize large consignments of imported, pirated works that would otherwise flood the market and undermine legitimate business interests.

(c) NIGERIAN CUSTOMS SERVICE

Before, the customs powers were limited to collection of duties and ensuring that goods on the prohibition list did not find their way into the country. This posed a limitation to brand owners in engaging the customs in fighting counterfeits from the strategic entry points into the country.

Today, things are changing for the better. The new fiscal policy of Nigeria, as contained in the Common External Tariff for 2008–2012 Schedule 4, provides the list of goods which are absolutely prohibited from being imported. Specifically, Item 3 prohibits the importation of “all counterfeited/pirated materials or articles including base or counterfeit coin of any country.”

The implication is that all categories of counterfeit goods are now prohibited from being imported into the country, and would be subject to all the powers which the customs service has over such products under the Customs and Excise Management Act.21Customs and Excise Management Act (1959) Cap. (C45), Laws of the Federation of Nigeria, 2004.

In this regard, section 46 of the Act provides that the following goods shall be forfeited:

(a) except as provided by or under this Act any imported goods, being goods chargeable with a duty of customs, are without payment of that duty landed or unloaded in Nigeria, or removed from their place of importation or from any approved wharf, examination station, customs station or customs area; or

(b) any goods are imported, landed or unloaded contrary to any prohibition; or

(c) any goods, being goods chargeable with any duty or goods the importation of which is prohibited, are found, whether before or after the unloading thereof, to have been concealed in any manner on board any ship or aircraft or in any vehicle; or

(d) any goods are imported concealed in a container holding goods of a different description; or

(e) any imported goods are concealed or packed in any manner appearing to be intended to deceive an officer; or

(f) any imported goods are found, whether before or after delivery, not to correspond with the entry made thereof

In addition to forfeiture of the goods in violation of Section 46 as stated above, Section 47 of the Customs and Excise Management Act provides that any person found to have engaged in such improper importation of goods and allied offences shall be sentenced to a term of imprisonment for five years without the option of fine.

The combined effect of the foregoing provisions and the Common External Tariff is that customs may now explored in combating illicit trade and enforcing IPRs straight from the ports of entry to the warehouses and indeed the markets. This is a welcome development for brand owners.

(d) THE NIGERIAN POLICE

Section 4 of the Police Act provides for the general duties of the police, as follows:

The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act.22Police Act (1943) Cap. (P19), Laws of the Federation of Nigeria, 2004.

From the foregoing provisions, it can be deduced that the Nigerian Police play an active role in the enforcement of IPRs in Nigeria. Police raids are conducted under the Merchandise Marks Act, which makes it an offence to falsely apply a trademark to goods not belonging to the true proprietor. However, penalties under the Act only include small fines and no custodial sentences; it is thus rare to see any resulting prosecutions.

(e) THE NIGERIAN INTELLECTUAL PROPERTY OFFICE (IPO)

The IPO oversees the administration of Industrial Property (Trademarks, Patents and Designs) in Nigeria. The IPO is an arm of the Commercial Law Department under the Ministry of Trade and Investment, and is also known as the Nigerian Trademarks, Patent and Designs Registry.

The Trademark Registration System in Nigeria provides numerous opportunities for applications to be challenged before and after registration. An application may be challenged before registration by the issuance of Refusal Notice or Opposition. After the issuance of an Acknowledgment Notice, the Registrar of Trademarks is empowered to cause a preliminary search to be conducted about the proposed mark. The examination is on both relative and absolute grounds of objection. The relative ground is to ascertain that same is not in conflict or identical with any previously registered mark or otherwise prohibited under the Act.

Through registering a trademark, the Trademark Registry will refuse registration to any trademarks it deems confusingly similar to the trademark. This measure is aimed at enforcing the rights of existing registered proprietors.

Government agencies such as the Standard Organization of Nigeria and the Consumer Protection Council do not directly aid the enforcement of IPRs in Nigeria. The Standard Organization of Nigeria is a body charged with the responsibility of designating, establishing and approving standards fro products and processes, and ensuring compliance with government’s policies on Standards, Metrology and Quality assurance of products throughout Nigeria. The organization’s major pre-occupation is ensuring that products in Nigeria conform to designated standards.

On the other hand, the Consumer Protection Council is saddled with the responsibility of ensuring that consumers get what they bargain for from manufacturers and importers, and that consumers are not deceived as to the nature, quality or origin of the products they have purchased.

RECOMMENDATIONS AND CONCLUSION

For an average Nigerian, it is no longer news that the nation has well articulated laws, but very weak enforcement of those laws. This, without a doubt, is causing untold hardship to the citizenry. Nigeria can be a better a place if the authorities concerned could take responsibility as to effectively enforce the pre-existing laws.

The government must seriously address the numerous factors that undermine effective enforcement of laws in the country including corruption, lack of coordination among the responsible agencies, lack of accountability, and lack of resources.

The country is flooded with several governmental agencies and regulatory bodies saddled with responsibility of administering and regulating various sector of the Nigerian economy. These agencies may become sentinels of intellectual property laws through strategic reformations, as outlined below:

  1. Appropriate and sufficient funding of government agencies for IPR enforcement.
  2. Appointment of IP experts and professionals to key policy-implementing offices.
  3. Manpower development and specialized IPR training for officers. Various regulatory agencies should employ adequate, competent and experienced personnel. This can be bolstered through continuous intensive training for law enforcement officers, to enhance qualitative service and boost operational excellence.
  4. Establishment of an IPR section at the first CID level, at the state CID level, at the area command level and at the division level of the Nigerian Police.
  5. Greater collaboration amongst agencies. Collaboration between governmental agencies whose functions overlap will enhance effective enforcement. Regulatory agencies should aim to pursue areas of collaboration in the area of information exchange, staff training and technical assistance.
  6. Public awareness and cooperation. Ultimately, the fight against counterfeiting and piracy has to involve the public, since its purchasing power causes these illegal practices to flourish.
  7. Participation and collaboration with the legislature. The regulatory bodies should diligently follow-up the passage of various bills in order to strengthen the intellectual property laws. Similarly, there should be tremendous influence upon the legislature to ensure that the laws, particularly in the area of sentencing of convicted counterfeiters, are reviewed to serve as deterrence to potential offenders.
  8. Enhanced mediation and arbitration. For a number of developed countries, one effective method to reduce the expense and bureaucratic delays in the enforcement process has been to introduce alternative dispute resolution procedures, such as mediation and arbitration.
  9. Improved national cooperation and coordination. The fight against counterfeiting and piracy would have a much greater chance for success as a coordinated one, involving all relevant stakeholders, and addressing all the various IPRs. Coordinating or taskforce units should involve the relevant ministries and agencies, such as the industrial property offices, customs, police and justice.
  10. Greater cooperation by the rights holders. As IPRs are ultimately private rights, right holders have the largest immediate financial stake in ensuring the protection of those rights. For this reason, rights holders should be particularly willing to assist in enforcement efforts by providing information to assist in the identification of infringing products and in cooperating in awareness and training programs.

Administrative and regulatory enforcement is considered to be comprehensive, speedy and relatively inexpensive. Actions against piracy, infringement and counterfeiting can take place without any recourse to the courts and involve government departments exercising specific powers of registration, investigation, inspection, seizure and destruction of counterfeited goods, raiding and office actions. Thus there is need for the police, customs, the Patent and Trademark Office and other relevant government bodies to ensure that counterfeiters are not given room to operate by exploiting any overlaps or conflicts.

One channel through which the country can explore huge investment opportunities is in IPR development, enforcement and protection. This will boost the confidence of foreign and local investors in the country’s intellectual property regime and ultimately increase revenue.

The realization that consumers should be protected and counterfeiters stopped from reaping the gains of their illegal and dangerous enterprise should galvanize the various bodies into closing ranks and forming a considerable force, enhancing effective enforcement of IPRs throughout Nigeria.

References   [ + ]

01. K.M. Waziri, Intellectual Property Piracy and Counterfeiting in Nigeria: The Impending Economic and Social Conundrum, 4 U. Abuja J. Pol. and Law 196 (2011).
02. Trade Marks Act (1967) Cap. (T13), Laws of the Federation of Nigeria, 2004.
03. Patents and Design Act (1990) Cap. (P2), Laws of the Federation of Nigeria, 2004.
04. Merchandise Marks Act (1956) Cap. (M10), Laws of the Federation of Nigeria, 2004.
05. Federal High Court (Civil Procedure) Rules (2009), S.I. 3 (Nigeria).
06. Copyright Act (1990) Cap. (C28), Laws of the Federation of Nigeria, 2004.
07. The registry is an agency operating under the Commercial Law Department of the Federal Ministry of Commerce.
08. Constitution of Nigeria (1999), § 239.
09. U.N. WIPO Advisory Committee on Enforcement, 8th Sess., U.N. Doc. WIPO/ACE/8 (Dec. 19–20, 2012).
10. Michael Blakeney, Guidebook on Enforcement of Intellectual Property Rights (Apr. 2005), http://trade.ec.europa.eu/doclib/docs/2005/april/tradoc_122641.pdf.
11. UNCTAD-ICTSD Project on Intellectual Property Rights and Sustainable Development, Intellectual Property Rights: Implications for Development, (2003), http://www.iprsonline.org/unctadictsd/Policy%20Discussion%20Paper/PP_Overview.pdf.
12. Agreement on Trade-Related Aspects of Intellectual Property Rights arts. 41–61, Jan. 1, 1995, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299 (1994) [hereinafter TRIPS Agreement].
13. TRIPS Agreement art. 41.
14. TRIPS Agreement art. 45.
15. The General Agreement on Tariffs and Trade (GATT) is a multilateral agreement regulating international trade.
16. WTO Secretariat, Nigeria: Trade Policy Review, WTO Doc. WT/TPR/S/147 (May 11, 13, 2005).
17. Obafemi Agaba, Filling the Vacuum of Intellectual Property Rights Regulatory Enforcement: Nigerian Customs Service to the Rescue, Business Day (Nigeria), May 14, 2009.
18. National Agency for Food and Drug Administration and Control Act (1993) Cap. (N1), Laws of the Federation of Nigeria, 2004.
19. D.N. Akunyili, Consideration of Intellectual Property Rights in Regulation and Control: Activities of the National Agency for Food and Drug Administration and Control, U.N. WIPO Advisory Committee on Enforcement, 3d. Sess., U.N. Doc. WIPO/ACE/3/9 (May 15–17, 2006).
20. Afam Ezekude, Nigeria’s Anti-Piracy Drive Yields Results, WIPO Magazine (June 2012), http://www.wipo.int/wipo_magazine/en/2012/03/article_0004.html.
21. Customs and Excise Management Act (1959) Cap. (C45), Laws of the Federation of Nigeria, 2004.
22. Police Act (1943) Cap. (P19), Laws of the Federation of Nigeria, 2004.

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