Trademarks, Patents And Theft Of Intellectual Property: What Does The Law Say?

Editors Note; Written By Yejide Gbenga-Ogundare, Originally published in Tribune

When Chukwuemeka Emmanuel popularly known as Oga Sabinus, a.k.a Mr Funny, made the announcement that he is filing a billion naira suit against Peak milk and N100m against Gala, many were shocked and opinions on the matter differed. YEJIDE GBENGA-OGUNDARE in this piece highlights the opinions of lawyers and experts on whether the case will succeed under the law, especially since the two companies that are being sued are obviously not ignorant about issues of rights and they seem unbothered as they are yet to speak on the matter.

Less than a month ago, award-winning skit maker, Chukwuemeka Emmanuel, popularly known as Oga Sabinus, a.k.a Mr Funny, made the headlines again; this time around, it is not for an award but for two suits filed against two giant companies; Friesland Foods Wamco Nigeria Plc, makers of Peak Milk and UAC Foods, makers of Gala.

Oga Sabinus filed a suit of a whooping N1billion suit against Friesland Foods Wamco Nigeria Plc and N100m suit against UAC Foods, over what he alleged as theft of his intellectual property, demanding compensation for what he described as the trauma; emotional, physical, psychological and mental that he has suffered for the Trademark theft and infringement of his intellectual property rights.

His case against Friesland Foods Wamco Nigeria Plc is that the company used the phrase ‘something hooge’ in its recent Peak milk advert to promote the Peak National Breakfast Week, adding that this term is his registered trademark. The ground for the suit he filed against UAC Foods is that it used his cartoon-like image with his signature pose without his permission or authorisation in its advert on a man calculating the number of gala he needs to survive.

Expatiating on the suit, Oga Sabinus legal representative, Stanley Alieke, in a letter dated May 27, 2022, said Friesland Foods Wamco Nigeria Plc used a trademarked slogan ‘Something Hooge’ for the promotion of your Peak Milk product adding that “the advert which was made on the Peak Milk Nigeria verified Instagram page (peak_milk) was posted on the 24th day of May 2022 which was used to promote the Peak National Breakfast Week.”

He had explained that the phrase ‘something hooge’ was not only popularised by Oga Sabinus but had been trademarked and legally reserved as his intellectual property by the Federal Ministry of Trade and Investment on November 26, 2021 with the file number: NG/TM/O/2021/48316.

He consequently demanded for the payment of the sum of five hundred million naira (N500m) as compensation for the unauthorised use of his intellectual property and another five hundred million naira as damages for the trauma; emotional, physical, psychological, and mental trauma our client has suffered for the trademark theft and infringement of his intellectual property rights.

And for the use of his cartoon-like image without his permission by UAC Foods, he demanded for the sum of N100 million because the company has been using “the brand picture and other intellectual properties of Oga Sabinus to make adverts for your Gala sausage roll without the consent or authorisation of our clients.

“You made a post on your verified Instagram handle (gala sausage roll), on the 23rd of May, 2022 with the picture of our client. The post which was a cartoon of our client was captioned ‘the way I calculate everything in my life.’ We demand that you pay our client the sum of one hundred million naira (N100m), for the use of the picture which is the average fee our client charges for his picture to be used for adverts and promotions,” Alieke demanded.

The case, as expected generated lots of traffic on social media with people; experts on copyright infringement and those who do not understand what the noise was about giving their opinion. While some felt Oga Sabinus had a case, others felt the case is not cast in stone especially in the UAC Foods matter, where they picked holes in the assertions made by Sabinus lawyer.

So many people expressed the belief that UAC may not have a case to answer as there isn’t a canny resemblance between Oga Sabinus and the cartoon image on the Gala advert and one cannot convincingly claim that the image is Oga Sabinus irrespective of the similarities in the pose, adding that if there was a resemblance, the pose cannot be trademarked.

Indeed, many are of the opinion that while Oga Sabinus has a case against Peak, he doesn’t seem to have a solid case against Gala, adding that this might also be the reason in the disparity in the amount being demanded from the two companies. This is further emphasised by the fact that both companies seem unbothered by the uproar that followed announcement of the suit as they have not brought down the disputed advert copies.

In a write up on why he thinks Oga Sabinus can’t sue Peak and Gala for trademark infringement, which he shared publicly, Yusuf Odukoya from Branditechture, he asked the question, what could hinder Oga Sabinus from further pursuing his claim? He used the position of the law to express his opinion.

According to him, the provisions of Resolution Law Nigeria states that a registered trademark is an identity and distinction that sets apart products of particular providers from those of others in the marketplace and affords the opportunity to benefit from the valuable reputation built over time in course of using the trademark.

For him, there is a catch; “a trademark applicant who intends to register a mark on more than one class of goods can file a separate application for each classification of the trademark to be registered. What this means is that a trademark must be registered in more than one trademark class to broaden the spectrum of its trademark protection. If an infringement occurs outside of the registered trademark class, then it will not be protected by the trademark law.

“There are currently 45 classes of trademarks according to the trademark classification guidelines in Nigeria. Classes 1 to 34 are for goods, while Classes 35 to 45 are for services. Meanwhile, Oga Sabinus had registered his trademark phrase, “Something Hooge” as a Class 36 trademark only,” he said.

He added that in his opinion, there are consequences in this for Oga Sabinus, emphasising that “he should have just avoided the uninformed pursuit of a lawsuit like this one, especially considering that it would make the headlines. If only he knew what it takes to actually win a lawsuit against one giant company, talk more of filing two cases against two big giants at once. Also, seeking one billion naira in damages from Friesland for the alleged infringement upon a trademark that was yet to be finalised is a big joke. This single act may deter brands from working with him in the future. It’s a big stain on his image, but I hope it fades away.”

He added that the process of trademarking a name takes a decent amount of time; from initial filing to the final certification stage which he said takes at least, five months from the date of filing for the trademark to the notification of acceptance, “not to mention the stage where it will be published in the official trademark gazette before getting to the final certification stage where a trademark certificate is issued.

“An acceptance letter from a Trademark Office is not legal proof that you own a trademark name. In this case, Sabinus applied for a trademark around November 2021 but in May 2022, he is already suing companies to the tune of ₦1 billion naira for trademark infringement. It is worth noting that these companies are no rookies in corporate laws and governance, and they know exactly what they are doing,” he maintained.

In his part, Augustine Omorodion, a copy writer told Nigeria Tribune that, “for those companies to keep quiet and not bring down the adverts immediately, they know they are covered and they are obviously not bluffing. I think going to court and making it a public issue is not the right path for Oga Sabinus to tow at this period because the position of his trademark needs to be ascertained.

“Then, for the UAC advert, is he saying we all can’t use that pose again. That is a pose that is natural to many humans especially when they are explaining issues. I think he should not have rushed to court or publicised the suit prematurely because it might affect his brand and business. Rushing to court isn’t the first recourse in business issues,” he said.

On his part, Barrister Foluso Olapo said whether he wins or not depends on the facts of his case. He said it is dependent on certain factors, “for instance, whether he is the author of the right he claimed to have been infringed, whether the defendants actually used his work without prior permission and whether he informed the defendants of the said breach and his resolve to enforce his right at the court of law. These must be proved before the court can arrive at a conclusion.”

Also speaking, the former chairman of Nigeria Bat Association (NBA), Ikeja Bar, Dave Ajetomobi said, “I think he will win if truly he can prove that he registered the word as his trademark, because such registration is a notice to the whole world. However, if the other parties can prove that their use of the word started before his registration, the case will be the other way round. It’s unfortunate these days that advertising companies hardly do due diligence before producing adverts for their clients, I know that coca-cola used to register the keywords or phrases in their adverts. Let’s wait and see what happens.”

However, an Intellectual Property Rights consultant, Emeeyene Henry Esq., in a post stated that Oga Sabinus may not win an infringement case against Peak Milk and Gala if he decides to go to court, advising Nigerians not to be nonchalant about their brands.

She said it is good that a conversation on Intellectual property rights protection and registrations in the right classes that has ensues is heartwarming, adding that people need to be taught that they don’t just register Trademarks carelessly but must ensure that they register in all the classes that covers what the business does.”

“While Sabinus registered the Trademark for the words ‘Something Hooge,’ the problem he might have in court is that the phrase was registered in Class 36, which is the class for financial Services and Real Estate and the company he is threatening to sue is not into real estate and may not be able to convince the court how companies that are not into real estate has violated his right.

“Like I have stated here several times, phrases and slogans can be protected as trademarks to prevent others from using same. I have seen a copy of an acceptance document which shows that Sabinus did infact register the Trademark for the words ‘Something Hooge.’ However, it must be noted that Trademarks are registered and protected in classes. Each Class of Trademark registration covers some particular line of businesses.

“Looking at Sabinus acceptance letter in circulation, it shows that the mark was registered in Class 36, which is the class for financial Services and Real Estate. You can only claim that your mark was infringed if it was used in the same line of businesses listed in the class in which the Trademark was registered in. The only way to prevent this from happening is by registering in all the trademark classes.

“Friesland Foods is a company which makes food or diary product, using the words ‘Something Hooge’ in marketing their product does not amount to an Infringement in my opinion. Food products do not fall under class 36. It would have been a different issue if a bank or a real estate firm used the slogan ‘Something Hooge’ in their advert,” she said.

For the alleged infringement on the use of his picture, she argued that a cartoon character that was used cannot be said to be his real picture as “making a caricature of a person and using same is an exception to copyright Infringement under Fair Use. It is called the Parody or Pastiche rule of exception. In the light of the above, Sabinus cannot claim any Copyright Infringement as the Law allows the use of Parody or caricature as exceptions to copyright Infringement.”

Some have argued further that though trademarks protect ideas against infringement by other businesses, they serve a different legal purpose than other types of intellectual property as while trademark provides protection to customers by removing the possibility of consumers confusing one company or service with another, patents and copyrights primarily lay claim to a product.

There however is a consensus that whether Oga Sabinus wins his suit or not, the situation has passed a major message to people especially business owners that there is a need to carefully select trademark class while registering and the advantage of registering in multiple trademark classes. They emphasised the fact that though the word ‘Something Hooge’ belongs to the Oga Sabinus brand, it is protected only within the specified class and the class under which it is filed does not cover food manufacturing services, making it difficult for him to prove infringement in his two cases.

Also, business owners are being encouraged by experts not to put off until they have been in operation for long or made it in business because someone else can trademark their name before they do.