PROTECTING YOUR BUSINESS IDEA Summary of facts Intellectual property (IP) law is a complex area.

This article can give you info rmation about the types of protection available, but there may be strategic and financial reasons why applying for IP rights may not be commercially advantageou s. You should consider seeking professional advice, for instance from an IP atto rney, before deciding how to proceed. Many people have great ideas for new products or services but dont have the means to get them to market and often look for a larger company to help them. If your idea is so unusual that its profitable, before you show it off, youll want to hav e that company sign a nondisclosure agreement promising it wont steal it. This is because there is no patent protection for an idea in Nigeria. Legal basis for protecting an idea? In Nigeria Intellectual property rights protect the exploitation of ideas, infor mation and inventions that are of commercial and proprietary value(not all thing s can be protected) There is ample protection for the intellectual property rights of both Nigerians and foreigners this includes copyright, patents and industrial and design right s in line with international treaties and conventions. The laws enumerated below make up the legal regime for the protection of Intelle ctual Property Rights in Nigeria. Nigerian Copy Right Act, Cap. C 28 Laws of the Federation of Nigeria 2004 Patents and Designs Act, Cap P2, Laws of the Federation of Nigeria 2004; and Trade Marks Act, Cap. T13 laws of the Federation of Nigeria 2004 Intellectual property protection includes Copyright, Patent, Industrial Design and Trademark. An idea that has not been exploited is not protected under the legal regime gove rning intellectual property; simply put an idea on its own is not protected by l aw. For an idea to be protected it must be exploited or at least reduced into a fixe d form for it to come under a head of protection under the Intellectual property regime in Nigeria. Copyright exists in creative and artistic works such as books, movies, painting s, photographs and software. A copyright gives the holder of such copyright the exclusive right to control exploitation, production and adaptation of such a wor k for a certain period of time. Section 1 of the Copyright Act states very categorically that class of works tha t are eligible for protection, the list is exhaustive and sadly it does not incl ude ideas. As matter of fact unless an idea or work falls under any of the above headings, th at idea or work will not be eligible for copyright protection. As a rule ideas a re not protected only works are protected by copyright. Copyright exists in work on the basis of originality and fixation. Simply put f or a work to be eligible for protection under copyright such a work must be or iginal and must be reduced into a fixed form. Thus if an idea is reduced into a fixed form as long as the two requirements for copyright protection are met, then copyright protection would lie in favour of such a work and as such it may be wise to reduce such an idea into a fixed form and get copyright protection for such a work. Practical steps to protect an idea Many people have great ideas for new products or services but dont have the means to get them to market and often look for a larger company to help them. If your idea is so unusual that its profitable, before you show it off, youll want to hav e that company sign a nondisclosure agreement / confidentiality agreement promis ing it wont steal it. This is because there is no patent protection for an idea in Nigeria. Get a good lawyer (that includes me) in your industry to help write a nondisclos ure agreement. Some agreements spell out exact confidentiality measures and obli gations and monetary penalties if the signer is found to have breached the agree ment, though you dont want terms so harsh that nobody would sign it, although rel

uctance to sign the agreement would usually be a sign that the company might jus t be willing to borrow your idea behind your back. Without such protection, winning an infringement claim may be difficult. If you do encounter a copycat, it may be worth hiring a lawyer to investigate the merit s of your case. If the manufacturer replicated your product and packaging to the point of customer confusion or copied something thats protected under trademark or copyright law, you might have a strong legal case. Basis of Non-disclosure /Confidentiality agreement It is trite law that every person who receives information which has the necessa ry quality of confidence about it knowing that he is required to keep it confident ial is likely in law to be deemed to have accepted (either expressly or impliedl y) obligations of confidence relating to that information (at least if he does s o before he receives the information). Accordingly, as a matter of law, a writte n secrecy agreement is not strictly necessary. Nevertheless, it is highly desirable for the protection of the person disclosing the information that such an agreement should be entered into by any recipient of it, since having documentary evidence of the information regarded as confiden tial and the acceptance of confidentiality obligations relating to it will assis t him in enforcing them against the recipient. No gainsaying the fact that the process of entering into the Agreement will also be evidence that the disclosing party operates a practice of maintaining confid entiality which will be of assistance should he need to take proceedings for bre ach of confidence against the recipient or any third party such as ex-employees of his own or of the recipient. Additionally, which may be just as important in some cases, the recipient will h ave a clear statement as to what he may and may not do with the information prov ided and if this is clear any breach of same will be easier to prove. Possibility of Litigation However its more probable a company would go the extra mile to alter your product or design just enough to dodge any legal issues. And please keep in mind that e nforcing those legal protections in court can be prohibitively expensive. In Nig eria just like it obtains in other jurisdictions, a lawyer will first send a cea se-and-desist letter, describing the believed offense and requesting the offende r to stop producing the product and possibly pay damages. If letters dont work, t he next step is usually a lawsuit. Please bear in mind that a law suit In Nigeria can cost hundreds of thousands of Naira in legal fees and filing fees and take away plenty of time from your busi ness. Lawsuits in Nigeria simply take a long time, on average four years at the High Court and theres no guarantee youll win. Conclusion In the end, the best way to protect yourself is by being extra cautious about wh om you share your idea with. Its worth talking extensively with others in your in dustry and getting referrals before disclosing your concept to anyone Olufola Wusu Esq. 2012 Megathos Law Practice Olufola Wusu is a Solicitor & Advocate and Intellectual Property consultant He can be reached at folawusu@yahoo.com

(1) Legal Disclaimer You must not rely on the information on this article as an alternative to legal advice from your lawyer or other professional legal services provider. If you ha ve any specific questions about any legal matter you should consult your lawyer or other professional legal services provider. You should never delay seeking le gal advice, disregard legal advice, or commence or discontinue any legal action because of information on this article.