2010 Business and Investment Forum (BIF) Calendar

1.Business Mission to Taiwan
January, 16th – 22nd, 2010

2. Nigeria – India BIF
February, 7th – 13th, 2010

3. Nigeria – Japan
April 10th – 17th, 2010

4. Nigeria – Turkey BIF
May, 2010

5. Nigeria – Taiwan BIF
June, 2010

6. Nigeria – China BIF
June, 2010

7. Nigeria – Brazil BIF
July, 2010

8. Nigeria – Iran BIF
August, 2010

9. Nigeria – Singapore BIF
October, 2010

Patent and Designs Act

Patents
The word “patent” denotes a grant of letters acknowledging a right or monopoly in respect of an invention. When a patent is granted, the “Letters Patent” are delivered to the patentee, who is the person entered on the Register of Patents as the proprietor or grantee. A patentee is thereby granted a right in law to prevent others from making, using or dealing in his invention whether by sale, importation or hire. A patent for an invention does not confer upon a patentee any right to manufacture, which he does not already hold. What the “Letters Patent” confer is the right to exclude others from the commercial exploitation of a particular invention.

The actual procedure for application for “Letters Patent” is quite simple and straightforward. The applicant (assisted by his/its agent - usually a solicitor in Nigeria) is obliged to complete some Statutory Forms, which may be obtained from the Patents and Trademarks Registry, and to return the same accompanied by documents relating to the invention. The Application Form and relevant supporting documents are thereafter referred to an “examiner” who investigates the novelty of the invention claimed and establishes whether or not an earlier claim had been made on it. The examiner's report is not binding on the Registrar but only assists him in arriving at a decision. If the request for a patent is accepted, colour, is an industrial design if it is intended by the creator to be utilised as a model or pattern to be multiplied by industrial process and is not intended solely to obtain a technical result. Like patents and trade marks, the right of registration of an individual design is vested in the statutory creator, that is, the person who, whether or not he is the true creator, is the first to file or validly claim a priority for an application for registration of the design, unless the creator was acting on behalf of another person for good consideration in which case that other person is treated as the proprietor.

The generally accepted view is that a mere importer of a foreign design is not its creator for this purpose, though it is not clear whether a mere importer may not be a proprietor by acquisition. Registration of an industrial design confers upon the registered owner the right to preclude any other person from reproducing the design in a manufactured product; or else, in importing, selling or utilising the design for commercial purposes. Reproducing the design in any miniature way is also prohibited by law. The protection provided by the Nigerian law is effective in the first instance for 5 years from the date of application for registration and two subsequent periods of 5-year renewals making a total of 15 years.

“Letters Patent” are granted to the applicant or joint-applicants and sealed with the seal of the Registrar of Patents upon payment of the prescribed fees.

Industrial Designs

The word “design” as used in this context means or refers to features of shape, configuration, pattern or ornament applied to an article by any industrial process or means, being features which in the finished article appear to and are judged solely by the eye, but does not include a method or principle of construction or features of shape or configuration which the article made in that shape or configuration has to perform.

The law in Nigeria as regards designs now goes further to provide that any combination of lines or colours or both and any three dimensional form, whether or not associated with Copyright Act

The Copyright Act

Promulgated in 1988 makes provisions for the definition, protection, transfer, penalty for infringement of the copyright in literary works, musical works, artistic works, cinematograph films, sound recordings, broadcast and other ancillary matters. In theory, a copyright registration prevents the copying or reproduction of physical material existing in the fields of literature and the arts. Its objective is to protect the writer or artist from the unlawful exploitation of their creation but does not give a monopoly to the reproduction of ideas or to any particular form of words or design.

Development of National Technology Capability (Manpower and Training)

Clauses should therefore be provided in Technology Agreement to ensure the employment, exposure and training of the appropriate and right caliber of Nigerian staff.
In all technology transfer agreement, NOTAP insists that due attention should be placed on the employment of Nigerians with relevant scientific and technological background to understudy the foreign experts with a view to taking over such responsibilities within the shortest possible time. It is therefore mandatory for overseas investors to submit a comprehensive Training Programme Management Succession Programme for Nigerians whilst processing their technology transfer agreements.

Consultancy Services

As a matter of deliberate policy, Government is of the view that consultancy services required to execute local projects should be obtained from Nigeria Consultancy firms. However, where the necessary expertise is not available, foreign consultancy firm may be invited to work together with a Nigerian consultancy firm in a subordinate capacity. Under current regulations, Consultancy Agreements should spell out the following details:

- Definite objectives of the contract;

- Detailed description of the scope of the work programme to be accomplished;

- The time table and targets;

- Time estimates for each task in the programme including training;

- A description of the project teams;

- A description of the management team;

- The fee estimates, usually based on man/hours;

- The billing procedure.

Technical Assistance

Payments for technical assistance would normally be covered through “know-how fees” which are themselves broadly determined as follows:

In situations when the subject matter of a contract covers technical know-how that can be assimilated by the recipient company over a short period of time; e.g. use of formulae, drawings, specifications, etc; payments on a continuous basis would not be accepted. Also not acceptable are limitations that may be imposed pertaining to their use except those pertaining to confidentiality.

As regards the use of non-patented know-how, NOTAP does not accept any restriction on the use of the said know-how after termination of the technology transfer contract:

For practical purposes, the evaluation of the amounts to be paid for technical assistance is the aggregate of the various sums of money that may be determined as adequate compensation for the following components of such assistance.

(a) Pre-Operational Phase

- Pre-investment studies.

- Technical assistance for the purchase of equipment.

- Design, fabrication, and supply of equipment and machinery.

- Technical assistance in the erection and installation of plant.

- Plant start up.

- Training of technical personnel in the above areas.

(b) Operational Phase

• Assistance in the purchase of equipment, spares, raw materials, etc.

• Quality control.

• Assistance in the operation of the plant including repair and maintenance, efficient production, etc.

• Technical improvements of processes and products.

• Technical services to clients.

• Training of technicians in licensor's or licensee's plants

Managerial Assistance

The kind and scope of these services would depend largely on the sophistication and size of the local enterprise. The expectation is that these services would be obtained over a specific period of time, covering the following matters amongst others:

- Planning and programming;

- Research and development activities;

- Inventory control and accounting;

- Financing and purchase;

- Promotion and marketing.

Managerial assistance services are evaluated having regard to the following:

a) A definition of the different kinds of services to be provided.

b) The provision of a training programme in the contract in order to ensure that the various functions of the enterprise can gradually be taken over by the licensee's staff.

c) Payments for these services are usually examined in relation to the economic benefits to the recipient company and the nation in general.

d) The responsibility and functions of the licensor must be well articulated in the contract.

Invest in Nigeria

invest in Nigeria is a developing programs which will help Nigerian people and its government. Invest in Nigeria have many benefits, its plays a major part in the up bringing of the Nigerian people and its government. Invest in Nigeria are programs which will help to develop schools, colleges, universities, providing employment for the jobless. And also will help in improving the current situation of the country by bringing in foreign aid as well as foreign investors.

A top Spanish company has already visited to Abuja to present its proposal in building roads network, hospitals and universities for the Nigerian people. This is a great achievement for the inventors of invest in Nigeria.The IMF has taken a giant stride once again in invest in Nigeria by providing financial aid to the local governments. The globe corporation has taken the best out of invest in Nigeria programs by going one step further. They have agreed to redevelop a complete city for the Nigerian people in which they wish to build schools, colleges, hospitals, hotels, good roads, and an international airport as well. This is a great achievement as to date so far in invest in Nigeria programs.

Many other companies are also focusing on the potential of agriculture in Nigeria. They have agreed with various local agricultural companies in providing them with the latest machinery and fertilizers that are needed for the better growth of plants.The area of IT and telecommunications are other virgin lands to be tapped within the Nigeria polity, a nation with about 200 Million people with less than 50 % having access to basic telephoning, UN has thanked all the companies that have taken part in the Invest in Nigeria programs. This brings in a new beginning for the country and has also given hope for the local people to look forward for a future that is bright and full of successes.

Despite the huge and enormous natural resources available in Nigeria uneven distribution of wealth has pushed over 80% of the populace to live in abject poverty, thanks also to some state Governments like Lagos and to some extent Kwara states for providing services that was top notch one of its kinds. This is indeed a great achievement for everyone who has taken part and has sweats their blood out to do the impossible.

Protection of Intellectual and Industrial Property

NATIONAL OFFICE OF TECHNOLOGY ACQUISITION AND PROMOTION (NOTAP)
The National Office of Industrial Property Act was promulgated in 1979 with the stated objective inter alia of monitoring, on a continuous basis, the transfer of foreign technology to Nigeria. The administration of the Act was entrusted to the National Office of Industrial Property, which was recently re-named as the National Office of Technology Acquisition and Promotion (‘NOTAP”). NOTAP concerns itself with examining the quality of imported technology with a view to determining its price and to check fairly obvious abuses. In other words, the principal concern of NOTAP is to register contracts/agreements, which deal with the transfer and acquisition of foreign technology. The obligation to ensure that proper registration is effected, is both on the licensor and licencee of such technology.

The categories of contracts/agreements which qualify for registration and/or are registrable as involving the “transfer of foreign technology” are described as those contracts/agreements whose “purpose or intent is, in the opinion of the National Office, wholly or partially for or in connection with any of the following purposes, that is to say –

(i) the use of trademarks;

(ii) the right to use patented inventions.

(iii) the supply of technical expertise in the form of technical assistance of any description whatsoever;

(iv) the supply of detailed engineering drawings;

(v) the supply of machinery and plant; and

(vi) the provision of operating staff, managerial assistance and the training of personnel.”

In order to prevent abuse and to discourage patent monopolies and transfer of obsolete technology, the Director of NOTAP may refuse to register any contract/agreement in which in his opinion:

• “the price or other valuable consideration therein is not commensurate with the technology acquired or to be acquired”.

• “where provisions are included therein which permit the supplier to regulate or intervene directly or indirectly in the administration of any understanding belonging to the transferee of the technology and are, in his opinion, unnecessary for the due implementation or execution of such contract or agreement”.

OR

• “where the transferee is obliged to submit to foreign jurisdiction in any controversy arising for decision concerning the interpretation or enforcement in Nigeria of any such contract or agreement or any provisions thereof”.

Trademarks Act

The essence of a “trademark” i.e., a label, name, numeral, signs, etc.) is to establish a connection “in the course of trade between certain goods and a person having the right, either as a proprietor or registered user, to use the mark with or without indication of his identity” on the product to which the mark is affixed. The product labels, which must indicate the origin of the goods, also represent acknowledged quality of some given products and the goodwill of their manufacturers or producers.

Trademarks may be registered or unregistered. Right in an unregistered trademark may be acquired by use and may exist independently of registration in which case there can only be a “passing-off” action for its infringement.

However, the proprietor of an unregistered trademark may oppose the registration of a similar trademark. The basis of this action is a proprietary right not so much in the name itself, but in the goodwill established through usage of the name in connection with the complainant's goods. The party objecting, therefore, must show that the name or mark in question has become associated with his goods, that a reputation or goodwill has attached to them under that name or mark and that use by the person seeking registration of a similar name or mark is likely to cause confusion resulting in damage to the reputation or goodwill of the complainant.

In Nigeria, the Trademark Act indicates what marks are registrable, and provides that a registrable trademark must contain or consist of at least one of the following essential characteristics:

- The name of the company, individual or firm represented in a special or particular manner;

- The signature of the applicant for registration, or some predecessor in his business;

- An invented word or words;

- A word or words having no direct reference to the character or quality of the goods and not being according to its ordinary signification a geographical name or surname;

- Any other distinctive mark but a name, signature, word or words other than such as fall within the description in the above paragraphs (i), (ii), (iv) shall, not except by order of a court, be deemed a distinctive mark.

In addition to the above, it should be noted that trademarks are registrable in Nigeria in different classes. The law, for example, provides that, a trademark must be registered for particular goods or classes of goods. The applicant must in his application, state the goods included in each class separately. If the applicant desires to register the same mark for goods falling within the ambits of more than one class, he must make different applications in respect of each class. Each such application is treated for all purposes as separate and distinct.

Whilst, in theory, speculative trademark registrations reflecting no direct relationship for use on specific goods are discouraged, the current universal practice of granting franchise and licensing rights for the use of well known trademarks on diverse goods recommends that proprietors of such trademarks should endeavour, as a protective and anticipatory measure, to effect registration in the country of their proprietary trademarks in diverse classes of registration.