A CRITICAL APPRAISAL OF THE TRIPS AGREEMENT ON NIGERIA’S INTELLECTUAL PROPERTY LAWS – A STUDY OF TRADEMARK LAWS IN NIGERIA
1.1 Background to the Study
The introduction of the The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) made a significant departure for multilateral trade agreements with the requirements stated on how member countries must protect Intellectual Property Rights (IPR) in their domain. Intellectual property has become quite popular and acceptable with many aspects expanding into a doctrine of a knowledge-based system showing its importance as a component of national and international policy .
Intellectual Property is termed creations of the human intellect, inventions, literary and artistic works, symbols and images used in commerce that the law protects from unauthorized access . It is comprised of patents, trademarks, copyrights, trade names, and indication of origin . It is used commercially to promote scientific, technological and cultural creation of ideas thereby encouraging capacity to innovate for competitiveness, growth and development of any society . However, it is vital to protect IPRs to facilitate societal development by ensuring the IPR rules are in sync with developments in the legal and market systems, as well as cultural norms (Khan, 2008). Intellectual property rights (IPRs) are primarily categorised into two;
• Industrial property: This includes patents, industrial designs and models, trademarks, and geographical indications.
• Copyright: This is related to literary and artistic property.
One of the issues that stood out in the 1970s was the observation that developing countries were not technologically advanced with respect to incentives provided by IPR, and patents for investment in research and development were not meaningful. IPRs were considered protection for monopoly imports of benefit to exporters at the expense of developing country importers .
The introduction of the TRIPS Agreement into the World Trade Organisations (WTO) in 1995 marked a significant departure for multilateral trade agreements thereby signifying the relevance of intellectual property to global trade liberalisation and the need for the protection of such rights within domestic boundaries by member countries while the WTO agreement provides a regulatory body for international trade to reduce barriers . It is set as a single IP framework encompassing categories of intellectual property law as well as new areas not previously protected internationally and also provides standards stating expectations of trading partners .
The TRIPS Agreement enforces a uniform standard of protection of IP which has raised concerns, but questions the views of industrialised countries . Other concerns about the TRIPS Agreement revolve round the knowledge gap such as the rich versus the poor, developed versus developing, greedy pharmaceutical industries versus dying AIDS patients in many developing countries . This questions the essence of the implementation and impact of the TRIPS Agreement on innovation and technology transfer and continuous use of unilateral pressures on technical assistance to developing countries . It is therefore important that a thorough evaluation should be carried out to determine the likely effect and impact of the TRIPS Agreement on the legislation of member states’ development and economic growth. Its challenge for developing countries has been the inability to transform it from a rent transfer mechanism into an effective instrument for technological development despite efforts by international organisations and scholars to determine its effect on developing countries .
Nigeria as a developing country and a member of the WTO is mandated to adhere to all WTO Agreements and having not reviewed its laws since the adoption of the TRIPS makes it impossible to comprehend the overall effect it may have until the treaty begins to take effect. It is advised that developing countries and countries in transition consider the introduction of a sustainable system for the impact of the agreement and protection of intellectual property with regards to their peculiar needs.
1.2 Statement of Problem
This research was borne out of the need to have a study and report on the impact of the TRIPS Agreement on intellectual property laws in Nigeria. It seeks to critically appraise the TRIPS Agreement vis-à-vis the Nigerian intellectual property laws on copyright, trademarks and patents. There has been reports on the TRIPS Agreement on developing countries in regards to each country’s legislation and the amendments to ensure compliance with effects majorly on the adaptation of legislation of WTO members to the requirements of the TRIPS Agreement . However, Nigeria as stated presently ranks as one of the bottom countries in the International Property Rights Index that checks the protection of property rights by comparing three core components of property rights systems .
The unavailability of essentials needed in the interpretation and application of the laws in the legal issues on intellectual property laws in Nigeria remains a challenge despite its access to black letter laws. This has led to the inability of the nation to meet with current changes in cultural, social and economic situations and law reviews. It is therefore essential to review IP laws with respect to current international developments especially the flexibilities in the TRIPS Agreement so as to create avenues for its benefits and provide an adequate IP legal framework in-depth assessment. The provision of this can aid in fostering development and the contribution of intellectual property in Nigeria. It is also of importance to make provisions on how IP law can be used as a tool for the advancement of developmental strategies in economic growth, promote sustainable development and with incentive to invest and develop new technologies in IP education and research which are reported lacking . As such, it will provide access to educational materials and resources for research and development .
1.3 Research Questions
The study will seek to address the following research questions:
1. What is the impact of the TRIPS Agreement on Nigeria’s Trademark legislation?
2. Are the Nigerian Trademark laws in compliance with the TRIPS Agreement?
3. Does compliance with the TRIPS Agreement improve IP protection in Nigeria?
4. What are the limitations of the current Nigerian IP legislation?
1.4 Objectives or Purpose of the Study
The central aim of this study will be to critically examine impact of the TRIPS Agreement on intellectual property laws in Nigeria, with a focus on Trademark law. To achieve this aim, the study will seek to attain the following specific objectives:
1. To examine the role and importance of the TRIPS Agreement on intellectual property laws in Nigeria.
2. To determine if the Nigerian IP laws are currently in compliance with the TRIPS Agreement.
3. To examine the challenges of the current Nigerian IP legislation from the context of a developing economy as a primary producer and consumer of IP contents.
4. To make recommendations on strategies needed by the Nigerian IP legislation in response to challenges.
1.5 Significance or Justification of the Study
The choice of the study is due to the importance of Intellectual Property to Nigeria’s socio-economic existence. Nigeria has been rated a major producer of intellectual resources in the global IP scheme due to its contribution to entertainment contents and educational materials. This study seeks to appraise the impact of TRIPS Agreement as carried out in Nigeria to determine its effect on the various areas covered by IP, its relevance to intellectual property laws in Nigeria and as a reference tool to the academic and research community.
1.6 Scope and Limitations of the Study
This study will explore the impact of the TRIPS Agreement on intellectual property laws in Nigeria with focus on the Trade Marks Act. As such, the study will limit itself to using information sourced from secondary data such as journals, textbooks, and online sources. Also the study will focus on Trademark in particular, as opposed to intellectual property which is a wider discipline.
1.7 Existing Theories
Several authors have written reports and reviewed the existing theories of IP and IPR with respect to the impact of the TRIPS Agreement on developing countries . However, most of the research has been limited to the effect on developing countries with the TRIPS Agreement differing from countries and not much consideration or focus on Nigeria. Studies have reported aspects such as the globalization of intellectual property rights through the TRIPS Agreement, issues of access to medicine knowledge has been challenging . In the debate on IP and policy, reported concerns on the fundamental impact of the TRIPS Agreement, particularly in Africa, as not satisfactorily documented due to policy makers relying on third party data reports than carrying out the research with substantive evidence.
Thorpe (2002) also studied and reported the utilization of the flexibilities in the TRIPS agreement with respect to the developing countries with concerns raised on implementation of the section 5 of the Agreement which covers patents. He further reported developing countries’ inattention to the flexibilities while pursuing aims they can’t achieve. This was further buttressed by the Swedish Parliament’s report of the WTO Agreements, especially on developing countries which also emphasized financial and economic implications, access to medicines, agriculture and genetic resources as the most important consequences of implementing the TRIPS Agreement .
In the study of the importance of IPRs and economic development, Abbott explained the relevance of delaying policies implementation may bridge the knowledge-based wealth gap and that the public interest elements of the TRIPS Agreement should be considered to allow governments balance private rights with public interest broad interpretation and application . However, informing the African policymakers on the impacts of the TRIPS Agreement on respective economies and societies has been identified as a fundamental element to the implementation and use of intellectual property in creating an enabling environment for its protection as technological advancement in economics and entrepreneurial market have ensured the strengthening of IP as private and personal rights rather than the need for a balance to avoid misuse .
The challenges outlined have basically been considered from the notion of the developing countries with little or no consideration from the Nigerian perspective as there has been no report. It is therefore imperative that efforts be made in carrying out research to explore and examine the effectiveness of the global structure in Nigeria specifically, relation to the above mentioned issues as research have reported unavailable on existing normative and institutional framework of the TRIPS Agreement impacts on Nigeria.
The methodology to be employed in this study will be a descriptive research design. This approach will be qualitative in nature and will rely on secondary sources of data based on a literature review of available relevant research, data and statistical analyses, textbooks, journals, and online sources. Other materials to be used will include Legal instruments in the form of Conventions, local legislations, relevant research reports and the primary documentation of significance in this study, the WTO/TRIPS Agreement. The materials reviewed will be will be carefully examined, extensively assessed, organised, analysed and presented in a descriptive manner to properly reflect the study’s objectives.
1.9 Organisation of Chapters
This study will be structured into four (4) chapters.
Chapter One: The Introduction, Background of the Study; Statement of the Problem, Research Questions, Objective of the Study, Significance of the Study, Scope of the Study, Limitations to the Study and Organization of the Study will be described in this chapter.
Chapter Two: This chapter reviews the literatures on The TRIPS Agreement on copyright, trademarks and patents and basis on the Nigerian legislation.
Chapter Three: This lays emphasis on the impact of TRIPS Agreement on Trademark Legislation
Chapter Four: This chapter will be made up of Summary on findings, Conclusion of the study, Recommendation, Contribution to knowledge and Suggestions for further research.
A CRITICAL APPRAISAL OF THE TRIPS AGREEMENT ON NIGERIA’S INTELLECTUAL PROPERTY LAWS – A STUDY OF TRADEMARK LAWS IN NIGERIA