PUBLIC SECTOR BRANDS AND FLUID TRADEMARKS-UNILAG



Background Facts

On the 29th of May 2012 President Goodluck Jonathan announced his plan to rename the University of Lagos, as Moshood Abiola University Lagos.

However, without dwelling on the legality or illegality of the above action this paper will attempt to examine the Intellectual property ramifications of the said action

The laws enumerated below make up the legal regime for the protection of Intellectual 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

 

Public Sector Brands In Nigeria

Neil McElroy is reported to have changed marketing substantially when he wrote the classic McElroy memo at P&G, which lead to the creation of the discipline of brand management. This began on May 13, 1931, when an internal memorandum from Neil McElroy argued that more concentrated attention should be paid to individual P&G brands.

The concern of these managers, he argued would be the brand, which would be marketed as if it were a separate business. In this way the qualities of every brand would be distinguished from those of every other.

In Nigeria many Public Sector organisations are beginning to brand effectively. Some have used bright colours, catchy slogans, or informative and navigable website, in all public sector bodies are looking like they mean business. They no longer come across as being aloof and unnecessarily bureaucratic. They now appear to be open, approachable, and yes desire to build working relationships with us, the citizens.

In a way, good branding is good marketing and communications. And one is tempted to think that what we need out of the public sector is very good communication.

University of Lagos as a Public Sector brand

University of Lagos was established by the University of Lagos Act. Section 1 of the University of Lagos Act 1967,             provides that:

“There is hereby established a University to be known as the University of Lagos (in this Act referred to as “the University”) to provide courses of instruction and learning in the faculties of arts, law, medicine, science, education, commerce and business administration, engineering, and any other faculties which may, from time to time, be approved under this Act.”

Thus it can be easily deduced that the brand University of Lagos is a creation of statute and that it exists in the public sector as a public sector brand.

Distinctive Names

The first ingredient in any great public sector brand is a good name. It should be registered as a trademark. A trademark is usually a word, your name; but it can also be a logo, an email address (folawusu@yahoo.com, a tag line “Eko oni baje” “Ebe Ano”. Whether registered or not, a name is a valuable asset that can be protected under the tort of passing off.

A strong Trademark is virtually mandatory for all public sector brands. As a matter of fact Section 30 of the Companies and Allied Matters Act contains some restrictions on the use of certain words as a Company name.
Further protection for a Statutory Brand can also be found in Section 62 of the Trademarks Act which grants protection to the “Coat of Arms” of both State and Federal Governments by placing clear restrictions on the registration of any brand bearing these Arms. In real life, self-help is also a real possibility; wearing Army camouflage on the streets would earn you anything but a cup cake from the boys in green, blue or even white.

A Public sector brand can be defined as a name, term, sign, symbol, design or a combination of colours intended to identify the Services of one Public Sector Institution, and differentiate it from that of another Public sector Institution.

Public sector brands are some of the most powerful and engaging brands in existence in Nigeria. The EFCC, LASTMA, PHCN and the NTA, amongst others, to a large extent elicit tremendous loyalty/disdain from employees and a large numbers of people who feel a strong emotional attachment towards them. It is however important to realise that effective public sector brands are about engaging people and changing behaviours, not just about logos and banners (although of course the visual expression is an important branding tool in every branding campaign ).

The number of public sector brands has grown in recent times. Quite a number of reasons are behind this, including the growth of government and its extension into all aspects of society. One can however argue that there is only one brand that counts in the Nigerian public sector – and that is the Nigerian Government. That would be assuming that all the other public sector brands are sub-brands deriving their value from the major brand Nigeria.

 

The future of Public Sector Branding

All branding is about communicating a clear offer to your customers or users, however for public sector organisations, such as the police force and health services, the focus may be on clarity and access to important information.

So branding and design may focus on signposting this information or communicating issues clearly in order to change people’s behaviour for example Federal Road Safety Commission’s “Don’t drink and drive campaign”, for example.

It goes without saying that Nigerian brands can make a huge difference to the people and are valuable public sector assets and as such should be protected and not decimated at the whim and caprice of every well-meaning leader. And perhaps most importantly of all there’s a need for more and better evaluation of the effectiveness of public sector brands.

In Nigeria it would be wise to expect to see more mergers of government bodies and some current brands disappear as the current economic downturn drives prudence.

A Fluid Trademark perhaps?

A trade mark that is always presented in the same way may become dull, repetitive and old-fashioned – or at least it may do so in the eyes of the consumers at whom it is aimed. Trade mark owners may therefore wish to replace the trade mark and use a new version for an indefinite period until it needs to be revitalised again.

Alternatively, the trade mark owner may try to be imaginative in terms of the way that he treats the mark – without actually replacing it. The mineral water manufacturer Perrier is a well-known exponent of this strategy. It created different colourful packages for its bottles and adapted them to special circumstances and events. However, on these packages the trade mark itself, used in white or green, remained unchanged.

Another alternative for trade mark owners is to create so-called fluid marks or mutating marks.

A “fluid trademark” can be defined as one where the owner makes significant and continuous changes to the registered trademark, often to secure new customers or retain existing ones.  Through the making of creative and sometimes obvious changes, the brand owner attempts to keep internet users and its customers interested and transfixed to its brand.

The mark itself is not replaced. Instead it is used in one or more variants, coexisting with the underlying mark. These variants can be used for special sales promotions, during particular periods of the year or for launching new products. They can be used just once or for a far longer period of time.

The most striking fluid trademark in the world should be Google. The world’s leading search engine changes their trademark on its most important webpage almost on a daily basis.

Another fluid brand is Robert Kelly, having altered his brand several times, from R Kelly, to Kelly to the Pied piper of Hamlin etc.

There are 3 major challenges that the trademark owner may face when permitting their mark to become fluid: It will possibly invite renditions not approved by the trademark owner (MAUL). The public could become confused as to the source of the trademark or new name and may consequentially seek reassurance or may attempt to verify same.

Conclusion

Using fluid trademarks can be dicey, but an abrupt name change won’t do already garnered good will any good.

However from a legal as well as marketing or branding point of view, the question is whether a total change of name is prone to cause brand/trademark dilution if it is the owner itself who is changing the name and mark? Or does it make a strong mark/name even stronger?

In this writer’s opinion the sudden name change does no good to the hard-won reputation of “University of Lagos” it would have been wiser to use the prior name, trademark exactly in the way it was registered. There is no point changing its appearance! But this may be a somewhat old-fashioned (legal/legalistic) point of view.

Olufola Wusu Esq. © 2012

Counsel  at Megathos Law Practice

Solicitor & Advocate and Intellectual Property consultant

He can be reached at fola@megathoslaw.com

OLUFOLA WUSU ESQ

MAY 2012

Legal Disclaimer

by Olufola Wusu Esq

(1) No advice

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54 Comments

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54 responses to “PUBLIC SECTOR BRANDS AND FLUID TRADEMARKS-UNILAG

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