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LEGAL ISSUES IN ANIMATION-10 THINGS TO NOTE

I grew up watching “Snow White and the Seven Dwarfs”, “Hercules”, “Bugs” like most Nigerians my early memories are filled with watching foreign cartoons. However, recently Thisday Newspapers published a story about Mrs Damilola Solesi, an enterprising Nigerian who runs Smids Animation Studio.

Mrs Dami Solesi was quoted has having said: “Primarily, what we do is to provide animation services to brands and agencies,” “We do commercials, documentaries, visual animation, motion graphics, and all that. We primarily use three media – core 3D animation, motion graphics, and visual effects. We are also working on some of our own content. We have a short movie we are working on, which is almost done; and we are looking to turn it into a web series.”

Animation has multiple uses beyond entertainment; it is also useful for socialisation and other forms of information dissemination.

However Nigeria seems to lack enough productive capacity to produce the animation it needs. Thus individuals and companies in need of animation have had to source for animation outside the shores of this country.
However, without dwelling on the propriety or otherwise of the seeming absence of local content in Animation in Nigeria this paper will attempt to examine the Intellectual property ramifications of Animation and the benefits of Innovation to Animators and Animation Companies in Nigeria and beyond.

Animation Intellectual Property;
Research and operations in the Animation industry produce new ideas, procedures, software, compositions, equipment and plenty of data.

This make up the basic intellectual properties of the industry which has potentially transformed the Animation industry from a commodity market to knowledge/innovation/intellectual property based industry.

Intellectual Property becomes a valuable asset to Animation companies, when it is registered and steps are taken to prevent competitors from accessing and using it for free.

The basic types of Intellectual property prevalent in the Animation Industry are the following; Trademarks, Copyrights, Trade Secrets, Patents and others like brands, Know-How, Know – Who and Professional Credentials & Credibility.

Benefit of Animation Intellectual Property;
In protecting innovation, a key benefit of an intellectual property system is that a contractual right is only enforceable against the person who entered into contract with you; while a property right is enforceable against the whole world.

Copyrights
A copyright gives the holder of such copyright the exclusive right to control exploitation, production and adaptation of such a work for a certain period of time.
Copyright exists in a work on the basis of originality and fixation. Copyright protection is particularly important to the Animation industry in the protection of its script, movies, 3-D animation and software used for animation.

Trademarks
The first scene in animation is a good name. It should be registered as a trademark. The crux of trademark infringement is the “likelihood of confusion.” The analysis would revolve around whether or not the allegedly infringing mark is likely to cause confusion in the eyes of the public. 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 Animation brands.

Animation brands In Nigeria
An Animation brand can be defined as a name, term, sign, symbol, design or a combination of colours intended to identify an Animation Company or studio and differentiate it from that of other Animation Companies. In Nigeria many of the Animation Brands we know are foreign.

Animation Brands, Social Media and Information Technology
All over the world Animation Brands are proficient with the use of the internet (yes websites and all) and social media in promoting their unique identities.

Patents
A patent is a document issued, upon application by a government office (or a regional office acting for several countries), which describes an invention and creates a legal situation in which the patented invention can normally only be exploited (manufactured, used, sold, imported) with the authorization of the owner of the patent

Patents in Nigeria are of limited duration, typically providing protection for a period of 20 years from the filing of the application for patent grant.
Patents cover things like Apple’s page turning animation and other cutting-edge technologies used in Animation.

IP Protection “fathered” the Animation Industry
It goes without saying that companies in the Animation industry, would probably not have been formed and would not continue to exist today without protection of its intellectual property!
If its creative products were not protected by IP, they would have been priced as a commodity and not as a brand. If the products had been priced as a commodity, they may not have been developed and made available to the industry. Spider-Man 3 was reported to have cost $258,000,000.

Why Nigerian Animation companies are yet to fall in love with IP…
Is Innovation necessary?
They don’t need to, because they are so busy creating animation (i.e. commodity trade) that no one thinks that there is a need to innovate, animation creates good publicity so why bother. Well… because with IP animation will create more value.

How significant is our market?
The market in Nigeria may be perceived to be so inconsequential that they do not see a need to secure IP rights in animation they produce. The animation companies may not have seen the need to generate revenue outside Nigeria.

Trade secrets
A “trade secret” is defined as any product, operating formula, pattern, device or other compilation of information which is used in a business, which gets its economic value from being kept secret, and gives the business a competitive advantage.
Contractual Protection for Trade Secrets
Trade secrets are more appropriately protected by contract. The contract should define the trade secret as explicitly as possible. Contracts like “non-disclosure agreements” (“NDAs”) need to have sharp definitions of trade secret boundaries just as patent claims are required to have definite boundaries.

Animation IP Transactions
Formal accounting procedures for IP assets are fast evolving, but they are generally not on the balance sheet of the average companies that own them, and they are sometimes ignored by financial analysts.
Creating and exploiting intellectual property is a key part of Animation. Crucial issues that need to be addressed include IP strategies, patent valuations, licensing and litigation.
Animation companies need to have in house counsel who understand and have the expertise to help them manage, enforce and extract value from Intellectual Property Portfolios.
The value of I.P. is a monetary compensation that is expected to be received from licensing of I.P. or from sale or exchange of other intangible assets.

Conclusion
The Global Animation Industry has been described as a “knowledge industry” because of new technologies coupled with Supercomputers have taken their place causing the industry to develop a big interest in intellectual property.
Commercialisation of intellectual property needs careful analysis of a number of factors to pick the best strategy. I.P. may be licensed, sold or even joint ventured.
Intellectual Property becomes a valuable asset to anybody and industry, when it is utilized to enhance everyday activities, registered and steps are taken to prevent competitors from accessing and using it for free.

Olufola Wusu Esq. © 2015

I help monetise Intellectual Property and make complicated Commercial and Oil & Gas Legal Problems simple.

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BRAND NAMES/TRADEMARKS VS GENERIC TERMS: ARE THEY PROTECTED?

 BRAND NAMES/TRADEMARKS VS GENERIC TERMS: ARE THEY PROTECTED?

When last did you visit Shoprite (a shopping mall) or go to Silverbird (the Cinema) or eat Indomie (noodles) or Google a word (use a search engine)?

What is a trademark?

A trademark is a sign that is used to identify particular goods and services as those produced or provided by a certain person or business. It helps to distinguish goods and services produced by one business from similar ones provided by another.

For example, “GT BANK” is a trademark that relates to services (innovative banking and financial services).

Please find below 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;

Trade Marks Act, Cap. T13 Laws of the Federation of Nigeria 2004;

Trade Marks Regulations; and

Merchandise Marks Act Cap. M10 Laws of the Federation of Nigeria 2004

 

Distinctive Names

The first asset in any great business is a good name. It should be registered as a trademark. A trademark must be distinctive and capable of distinguishing the goods or services with which it is used.

A trademark is usually a word, but it can also be a logo, an email address (folawusu@yahoo.com, a tag line “Just Do it”

Functions of a trademark

They usually; help consumers identify and distinguish products or services.

 

How is a trademark protected?

The most common and efficient way of protecting a trademark is to have it registered.

Why protect trademarks?

It provides business people with a remedy against unfair practices of competitors.

Most companies are always trying to make their brands household names.

But when a trade mark is being used as a general term to refer to all goods and services in its class, that trade mark can be said to be a genericized trade mark.

 

The Innovation Perspective

I.P. Lawyers would say this process is called “genericization”. At the very least companies must juggle their quest for brand recognition with the fear of brand dilution, leading to trademark loss or devaluation.

 

Brand Names can be declared Legally Generic after…

A company sues another firm for using its name and the case goes to court and the trademark is said to be genericized even though it was initially distinctive but has changed in meaning to become generic.

 

What if trademark protection is lost…?

Microsoft vs. Apple

Microsoft is challenging the “App Store” name. Apple first applied for the trademark in 2008, shortly after launching the App Store for the iPhone. Microsoft is seeking to thwart Apple’s claim to the “App Store” name.

Protecting your brand from becoming Generic

What can Brand owners do to protect their brand and prevent it from becoming generic? That is a discussion for another day.

Conclusion

In Nigeria you probably won’t lose your trademark because your mark has become generic. However you would probably still suffer the business consequences that would arise from the weakness of your trademarks.  As a trademark owner, you still have to actively protect your trademarked name. That means using it consistently and protecting it against infringement and from becoming a generic term.

Perhaps our trademark laws need to be amended such that a trademark owner loses his trademark once his trademark becomes generic as generic terms should continue to be available for use by all without fear of reprisal by a trademark owner especially one that made or watched or his trademark become generic.

 

Olufola Wusu Esq. © 2012

Lead Partner Megathos Law Practice

He can be reached at folawusu@yahoo.com

Copyright © 2012

Lead Partner with Megathos Law Practice

Okay let’s get started…

Your thoughts anyone?

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by Olufola Wusu Esq

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