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NNPC takes the lead in safeguarding Intellectual Property in the Oil and Gas Industry

 NNPC imagesIt was reported in the news that the Nigerian National Petroleum Corporation (NNPC) Retail Limited has sued the Natural Network Petroleum and Gas Company (NNPG) Limited and two others over infringement on its trademark.  NNPC had in a suit joined Corporate Affairs Commission (CAC) and the Registrar of Trade Marks, Patent and Designs as second and third defendants respectively.

From this action, it would seem that the NNPC is keen on taking the lead in safeguarding Intellectual Property (IP) in the Oil and Gas Industry in Nigeria. It remains to be seen whether indigenous oil and gas companies will follow suit of their own accord or await regulatory changes, making IP Asset development, research & development mandatory, thus leading to IP and Innovation development.

This article attempts to highlight some key IP Issues indigenous Oil and Gas Companies may need to note.

The need for Innovation/Intellectual Property Commercialization

A report issued by PricewaterhouseCoopers in 1999 found that the global IP licensing market totalled more than US$100 billion, giving an idea of how economically important IP assets are today. Right now the total worldwide IP licensing market is estimated to be $250 billion annually.

ExxonMobil is reported to have collected more than US $129 million in 2011 from licensing its IP to third parties, and this number is increasing every year.

IBM alone generates nearly $2 billion a year from out-licensing its IP. The asset value of patents worldwide is estimated at $1 trillion.

U.S. IP licensing revenues were estimated at $120 billion in 2003 and are expected to have reached $500 billion by 2010. University licensing royalties in the U.S. total nearly $1 billion annually.

In 2013, the Shell Oil Company received 189 patents from the U.S. Patent and Trademark Office. Research with patent portfolio analysis tools shows that Shell was assigned 207 U.S. patents in 2014 held by Royal Shell. Shell spent $1.2 billion on R&D.

The Chinese government paradigm

The Chinese Government is fostering home-grown innovation and IP commercialisation through tax incentives. From 2006 through 2010, Chinese oil and gas companies cumulatively boosted R&D spending by 29 percent annually and upstream patenting activity by 66 percent annually. In downstream, the Chinese energy conglomerate Sinopec is amassing a large patent portfolio, at home and abroad.

 

 

Nigeria’s Window of Innovation

For our industries to thrive we need Governmental support for our local industry, government has given some support in the Nigerian Local Content Act? However technological growth and development does not happen by chance, in this writer’s opinion our local companies have a duty to take full advantage of governmental support by actively innovating and commercialising their resulting innovation and Intellectual Property.

Nigerian companies may need to pay a little more attention to research, development and the resulting innovation that increases profitability which should be protected and commercialised by IP possibly Patents, Trademarks, Copyright  and Trade Secrets etc.

During exploration, extraction and transportation of Oil and gas, value is added to the unrefined Oil and Gas by technology, and other business practices that help process the extracts into useful and valuable consumer products.

The innovation, technology and business processes (Intellectual Property Assets) involved, are often protected by IP and become valuable assets to Oil and Gas companies, when they are registered and competitors prevented from accessing and using proprietary innovation for free.

Owners of such IP Assets may actively commercialise their assets by licensing them to companies willing to use these IP Assets in exchange for a license fee.

Trademark as an IP Assets in the Oil and Gas industry

The first barrel in any great oil and gas company is a good name. It should be registered as a trademark.  A trademark is a symbol or a sign which differentiates the goods and services of one business from another one. A trademark provides protection to the owner of the mark by ensuring the exclusive right to use it to identify goods or services, or to authorize another to use it in return for payment of license fees.

The Oil and Gas Industry is particularly susceptible to trademark issues as internal and external consumers rely on their trademarks to purchase goods and services from them.

Filling Stations and Trademark lawsuits

The Managing Director of NNPC Retail Limited, Mr. Fagbola Ladipo was reported to have alleged that the infringement on the NNPC trademark by the first defendant had begun to cause a dwindling in the sales of NNPC in Ondo State. He also alleged that the first defendant was imitating the NNPC logo by using its colour combination of red, yellow, green, uniform, emblem and the acronym NNPC…

The Russian Legal Information Agency (RAPSI/rapsinews.com) reported that sometime in 2003, a court awarded Rosneft oil company $95,000 in its trademark infringement lawsuit against EKA-AZS fuel company, which operates a large chain of filling stations.  The parties told the court they entered into a franchise agreement in 2005 for a term of 5 years, under which EKA-AZS paid $1,000 for the right to use Rosneft’s trademarks to sell fuel at 40 filling stations. Rosneft maintains the defendant illegally used trademarks for five months after the contract expired on September 29, 2010.

Sometime in 2015 LUKOIL North America filed a lawsuit in U.S. District Court for the Eastern District of Pennsylvania against R.K. Keystone Mobile Mart Inc., Gurmeet Singh, As Airport Texaco Inc. and Swapnesh Sharma, alleging trademark infringement and trade dress infringement.

According to the complaint, the defendants own and operate the former LUKOIL fuel station at 3575 Airport Road in Allentown even though the station no longer is a franchise under the LUKOIL name.

Sometime in 2011, it was reported by Bloomberg that BP filling station operators in the western U.S. sued BP Plc. seeking $200 million in damages over allegations the company’s sales and inventory software they are forced to use is “an unmitigated disaster.”

Branding in oil and gas

Oil and Gas companies seldom attempt to suggest that they have perfectly “green credentials”. It may be more prudent to emphasise their capacity for innovation which benefits society in future and their importance in providing energy for today’s society.

 

The world’s most valuable Oil & Gas brands

Please find below a table of the world’s most valuable Oil and Gas Brands, at number 8 is Petronas, a national oil company just like the NNPC.

 

Rank 2015 Brand Name Domicile Brand Value ($) 2015
1 Shell Netherlands $30,716,000.00
2 ExxonMobil United States $18,242,000.00
3 Chevron United States $18,163,000.00
4 PetroChina China $17,521,000.00
5 Sinopec China $16,135,000.00
6 Total France $15,203,000.00
7 BP UK $14,743,000.00
8 Petronas Malaysia $9,480,000.00
9 Eni Italy $8,037,000.00
10 Gazprom Russia $ 6,961,000.00
11 Statoil Norway $6,528,000.00
12 ConocoPhillips United States $6,062,000.00
13 Petrobras Brazil $5,945,000.00
14 Mobil United States $4,696,000.00
15 CNOOC China $4,523,000.00
16 Esso United States $4,471,000.00
17 Enbridge Canada $4,340,000.00
18 Exxon United States $3,995,000.00
19 Schlumberger United States $3,994,000.00
20 PTT Thailand $3,681,000.00

 

Interestingly, some Energy brands operating in Nigeria’s upstream sector are struggling to erase negative perceptions especially as it concerns environmental compliance. We have recently seen a number of IOCs divest assets onshore possibly due to a whiplash from host communities over alleged unacceptable environmental practices. All these point to the importance of IP to an Oil and Gas company’s profitability.

 

Conclusion

The challenges facing our oil & gas industry ranging from the fall in crude oil prices to the perception of oil & gas companies by the local populace and the changing global energy landscape make it needful for active collaboration between all stakeholders. In addition, for our Local Oil and Gas companies to grow they may need to take their Research and Development and resulting IP like patents and trade secrets seriously, they may also wish to leverage on the advantages conferred on them by the local content policy currently being pushed by the government. It goes without saying that technological development does not happen by chance, it can be encouraged by good policies like the local content policy serving as a spring board for the inventiveness of our local companies to flourish. 

[1] Source http://www.eregistration.copyright.gov.ng/? last accessed on 30/03/2015

Olufola Wusu Esq © 2015

fola@megathoslaw.com

Olufola Wusu is a Commercial, Oil and Gas and I.P. Lawyer based in Lagos

OLUFOLA WUSU IS NOTED FOR HIS “DYNAMIC PRACTICE” AND “COMMERCIAL ACUMEN”. HE IS PRAISED FOR HIS “FIRST-RATE SKILLS” IN ASSISTING CLIENTS…

NNPC GROUP

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NNPC Reforms-The IP Dimension

President Muhammadu Buhari has stated that the Nigerian National Petroleum Corporation (NNPC), the national oil company will be divided into two successor entities under his administration, one of the successor companies will be an independent regulator, the second would run as an investment vehicle for the country.

The Group Managing Director (GMD) of the Nigerian National Petroleum Corporation (NNPC), Dr. Emmanuel Ibe Kachikwu is reported to have stated that “We are doing a lot of work in terms of repositioning, restructuring, getting the right people in key places and setting a culture of accountability and service delivery so that the new NNPC that you are going to see will be a different institution altogether”.

“It’s a three-pronged process that I am pursuing. There’s a people aspect which we are dealing with now; there is a process aspect; after the people at the right places, you are going to get forensic audit done so that we know clearly, proper forensic audit that will cover us all the way to 2014, 2015, that will be able to say to you, this is the state of the company”.

The new NNPC boss said under his watch, processes and control are going to be put in place. He also said the NNPC is going to embark on retraining and repositioning.

Without dwelling on the legal ramification or ethical considerations of the above reforms, this paper will attempt to highlight the possible Intellectual Property (IP) dimensions of the proposed NNPC reforms.

What does IP have to do with Oil and Gas?

Oil and Gas Intellectual Property;

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

In protecting innovation and technology 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 world! Reports have however shown a strong correlation between the presence of intellectual property in oil and gas companies, especially service companies, and their profitability.

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 cover things like cutting-edge technologies used in refining, gas processing, LNG facilities, instrumentation, production data capture, horizontal drilling, multilateral wells, hydraulic fracturing, or fracking, and deep-water-drilling methods. Technology breeds IP which often gives rise to market dominance or influence.

Who are Getting Oil and Gas Patents?

Nearly everyone in the oil and gas industry is getting patents.

Schlumberger is one of them. Schlumberger’s technological dominance in the oil field servicing landscape is reflected in its formidable patent portfolio. A search on Espacenet, an international database operated by the European Patent Office, for Schlumberger reveals more than 36,000 patents linked to the firm. A search for Halliburton yields 25,000, while Baker Hughes, the third-largest in the sector has 20,000 patents.

ExxonMobil had over 10,000 active patents at the end of 2011.  Shell had over 20,000 patents at the end of 2012.

Over the past 35 years of GTL development Shell has filed some 3,500 patents, the company’s world-scale undertaking in Qatar is bringing new discoveries and challenges

Why Nigerian Oil and Gas companies are yet to fall in love with Patents …

They are so busy making money selling oil and gas (i.e. commodity trade) that no one thinks that there is a need to innovate; there is enough money to go around so why bother with R&D that leads to technology which breeds IP that gives rise to increased profitability.

Interestingly, oil prices have fallen and with IP, companies will be able to make more profits. For example the sands project method described in (U.S. Patent No. 6,158,510) was patented by ExxonMobil in 2000.  ExxonMobil licensed it to Baker Hughes in 2012.  ExxonMobil collected more than $129 million in 2011 from licensing its intellectual property to third parties, and this number is increasing every year.

Trade secrets

A “trade secret” is 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.  The upstream oil and gas industry depends heavily on trade secret protection.  The duration of trade secret protection is potentially perpetual, as it continues as long as you can keep your “trade secret” secret! Hydraulic fracturing is also heavily protected by trade secret protection. Despite regulatory pressure to show the contents of hydraulic fracturing fluids, companies that ‘frack’ have failed to show the full content of hydraulic fracturing fluids.

Copyrights

Copyright exists in a work on the basis of originality and fixation. Copyright protection is particularly important to the oil and gas industry in the protection of software, databases and maps, the results of a 3-D seismic survey which would include aspects of each.

Trademarks

The first barrel in any great oil and gas company is a good name. It should be registered as a trademark.  The oil and gas industry seems to have overlooked the power and value of branding as many executives may not appreciate how brands work to create economic value.A brand is a collection of trademarks, trade names, logos, signs, symbols, domain names, copyright and creative material which stand for values and character in the minds of stakeholders which positively influences their behaviour towards the subject company. According towww.brandfinance.com Shell is described as having the most valuable brand in the oil and gas industry.

Interestingly host community hostility has driven some oil majors from onshore operations offshore, perhaps due to negative branding with regard to environmental issues. In addition not all IP-branding endeavours are successful as BP recently lost its battle to trademark the colour green in Australia.

Economic Benefits of IP in Oil and Gas

The oil and gas industry has become aware of the benefits of IP in Oil and Gas and the dangers of its neglect. This awareness has been accelerated, by the sudden growth in the extraction of difficult oil and gas reserves (leading to increased profitability for some oil and gas companies) as made possible by technological innovation such as hydraulic fracturing, or fracking, and deep-water-drilling methods in the oil and gas industry as well as a changing competitive landscape, characterised by low prices and increasing supply that seems to have changed the oil and gas industry’s dynamics. The good thing is that technology breeds very valuable IP.

QatarGas engaged in intensive research and development leading to technology innovation backed by patents that enabled it to build Liquefied Natural Gas plants on a very large-scale. QatarGas has 20 trains thus it processes more gas at a cheaper rate and is able to sell at lower rate, thus selling more gas and making more profit despite the seeming downturn.

Oil and gas companies have recently boosted their research and development (R&D) spending and innovation to stay relevant. From 2002 through 2011 the top ten oil and gas companies increased their spending on R&D by nearly 10 percent annually yielding favourable results. In the Boston Consulting Group’s recently released list of the world’s most-innovative companies, three oil and gas companies ranked in the top 50: Shell at 26, Exxon Mobil at 40, and BP at 44.

 

Global IP in Oil and Gas Competition is increasing

Efforts to protect IP in oil and gas through patents, trade secrets, and other means have clearly increased.  Globally, patent activity in upstream oil and gas rose by about 20 percent per year from 2009 through 2012. However, the downstream sector which comprises of IP-intensive businesses such as refineries has had steady patent activity.

Innovation has the potential to drive oil and gas companies’ profitability and influence their relationships with national oil companies and oil-field-service companies. This may be the reason the Chinese government is encouraging “home-grown” innovation and facilitating “patenting” in oil and gas through tax incentives.

From 2006 through 2010, Chinese oil and gas companies have increased R&D spending by 29 percent and upstream patenting activity by 66 percent. In downstream, the Chinese energy conglomerate Sinopec is amassing a large patent portfolio, at home and abroad (excluding Nigeria I guess).

Nigeria may consider encouraging innovation in oil and gas backed by IP in its oil and gas companies. The NNPC may very well lead the way in this regard by laying the regulatory framework for IP in oil and gas to thrive in Nigeria.

The Need for IP reforms in NNPC

There is a need for Nigeria, the NNPC and Indigenous Oil and Gas companies to pay attention to IP which is catalysing growth in the Oil and Gas industry. The Oil and Gas industry is intensely innovative and technology driven and this technology is protected by patents and other IP owned by companies who either directly take part in Oil and Gas projects or license out their IP including patents to others to use for a hefty fee.

National Oil Companies are driven by IP-The Petronas Paradigm

Malaysia’s national petroleum corporation is called Petroleum Nasional Berhad (PETRONAS). It was incorporated in 1974 under the Companies Act (1965) and is owned by the Malaysian government. Just like it is in Nigeria, the entire ownership and control of petroleum resources in Malaysia rests with PETRONAS through the Petroleum Development Act (1974).

Clear IP Centred Research and Development Policy

PETRONAS uses sound technology to run world-class plants to create new products or improve existing products.  PETRONAS receives grants for commercialization of research and development (R&D), and for developing prototypes or pilot plants leading to valuable patents and IP. Its R&D partners include universities, institutions of higher learning, government research institutes, private consultants, and other companies.

NNPC’s research and development policy is a bit unclear, the number of patents or IP it owns are not easily ascertainable.

 

Intellectual Property Management

IP increases the profitability, growth and business development of PETRONAS. The need to protect PETRONAS’ intangible assets/IP motivated it to set up a separate IP division within its legal department consisting of lawyers who understand the IP implications of oil and gas. The IP division has the function of protecting PETRONAS IP rights (IPR) against the competition, preventing infringement, and commercialization of IP asset by sales or licensing.

The IP Division is also in charge of everything about corporate IP matters like the development of IP guidelines and IP process flow. Conducting IP awareness programs on the value of IP/intangibles and the registration of PETRONAS trademarks and patents, for the units within PETRONAS.

Patents

Owning a patent (and other IPR) makes it easier to attract investment. Venture capitalists often seek entities that own IP to invest in. Strategic patenting by NNPC can help raise funding, increase profitability, help avoid prosecution for patent infringement, also IP portrays  a company as innovative.

Trademarks and Branding

PETRONAS has more than 200 trademarks spread out over 65 countries. PETRONAS has registered 110 trademark applications in 45 classes with the Malaysia Intellectual Property Office. PETRONAS brand promotional activities have made customer loyalty the most important target.

Domain Names

PETRONAS has invested a significant amount of money and time in creating and promoting its brand name, both nationally and internationally. A number of internet websites are operated by the company and its subsidiaries. Petronas has successfully challenged cyber squatters at least three times.

Conclusion

The upstream oil and gas industry has been described as a “knowledge industry” because of new technologies such as three-dimensional acoustical sounding, horizontal drilling, and deep offshore drilling. Cutting edge technologies coupled with Supercomputers have taken their place with the industry developing a big interest in IP. Commercialisation of IP needs careful analysis of a number of factors to pick the best strategy. IP may be licensed, sold or even exploited in a joint venture. Perhaps the inclusion of IP in the NNPC reforms would pave the way for “the IP in Oil and Gas” revolution to begin in Nigeria which should help nudge the indigenous oil and gas companies and the Industry in the right direction IP wise.

Olufola Wusu Esq. © 2015

I work with companies seeking to invest in Nigeria. I solve legal problems and help monetize I.P. & Oil and Gas.

fola@megathoslaw.com

Please connect with me on LinkedIn http://www.linkedin.com/pub/olufola-wusu/22/317/587

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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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HOSPITAL BRUTALITY AND PUBLIC SECTOR BRANDING IN LAGOS

HOSPITAL BRUTALITY AND PUBLIC SECTOR BRANDING IN LAGOS

There was chaos at the Lagos State University Teaching Hospital (LASUTH) where families of victims of the Dana Air crash were busy collecting remains of dead relatives as there was a brutal and savage attack on Leadership newspaper photojournalist, Mr Benedict Uwalaka, on Thursday, August 9, 2012 by officials of the Lagos State University Teaching Hospital (LASUTH) believed to be mortuary attendants.

However, without dwelling on the legality or illegality of the above actions 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

In Lagos State 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 in Lagos State 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.

The other day I had to carry out a transaction at the Registrar of Limited Liability Partnerships at Ministry of Justice Alausa Lagos, their response was swift and the staff were courteous at all times.

Lagos State University Teaching Hospital as a Public Sector brand

According to information available on its website, the General Hospital Ikeja was commissioned for treatment of patients from Ikeja and its environs on June 29th 1955. It was originally a cottage hospital but later transformed to a full fledge General hospital.

It is pertinent to note that the General Hospital has now been transformed into a Teaching Hospital of repute from 9th February, 1999.

Thus it can be easily deduced that this hospital 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 Governments and Federal Governments by placing clear restrictions on the registration of any brand bearing these Arms.

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 Lagos.

LASTMA, KAI, VIO, NEIGHBOURHOOD WATCH, LIRS, LTV and LAWMA amongst others, to a large extent elicit tremendous loyalty/disdain from employees and a large numbers of people/Lagosians 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 by words but by timely actions and 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 in Lagos 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 Lagos public sector sphere– and that is the Lagos Government. That would be assuming that all the other public sector brands are sub-brands deriving their value from the major brand Lagos State, so damage done to a public sector institution is damage done to the brand of Lagos State that seems to have consolidated on the catch line the centre of excellence with breath-taking innovation obvious to all and sundry..

From the Horse’s mouth…

Mr Uwalaka was quoted as saying the following:

“I came to LASUTH in the morning to cover the release of the corpses of victims of the DANA Air crash. Some vehicles were deliberately used to block the entrance to the mortuary to prevent access. From a distance, I took the pictures of the vehicles. Suddenly I heard a voice behind me, saying ‘shows me your camera, show me your camera. What pictures are you taking?’ Suddenly, somebody came from behind and snatched the camera from me.”

He said the attackers began beating him mercilessly, hitting him with their fists, sticks, bottles and other dangerous weapons, resulting in serious bodily injuries, especially on his face. Indeed, dangerous weapons were freely used to inflict injuries on his head.

 

An eyewitness perhaps…

According to media reports, another journalist, Mr Kola Olasupo, who was present at the scene, corroborated Mr Uwalaka’s account.

He was quoted as saying

“Uwalaka was wrongly attacked for an offence he did not commit and his camera destroyed by attendants and officials of the mortuary; if we were not around to rescue him while the mortuary men pounced on him and stabbed him, he would have died from severe loss of blood.”

But the Police is our Friend…

The incident was immediately reported at the Area ‘F’ Police Division headquarters in Ikeja where Uwalaka was taken to by his colleagues and a police report sought to take him to the emergency unit of the hospital.

It’s curious that the police station beside the hospital where the incident was reported refused to act on the lodged by the Uwalaka, possibly there were a little over stretched at this time.

This is poor branding on their part, they would simply have saved the day by nipping such violence in the bud, and refusal to answer a call for help in a brawl does not inspire much confidence that calls for help will be answered when assailants are armed with firearms et al.

A Case of Double Standards perhaps?

Swift detention of accused nursing mother but no action on murderous attackers of photo journalist…

Why has the nursing mother accused of murdering a Lastma official been held in detention even when she denies the allegation? While we have a video clip by Channels Television of multiple assailants/officials murderously attacking a photojournalist armed with his camera, they are not even denying the crime captured on video camera yet they are still walking free while the government, police and hospital management are busy passing the buck back and forth.

Why invite journalists to your hospital if you don’t want them around?

If people are not safe in a hospital which is meant to be a sanctuary for the infirm then where then are they safe? Does it make any sense that Uwaleke walked into the hospital whole but walked out with horrific injuries and awful bruises? Is the hospital hiding something?

Does the hospital not owe the photo journalist a duty of care?

I beg to think that they actually do, there is a good reason why contractors are vetted, and this is because the lines separating an agent from an independent contractor are easily blurred thus making vicarious liability anything but a distant reality.

 

An unreserved apology…

Our Hardworking and Innovative Governor an oral apology however unreserved would simply not do.

For one,  your Excellency, it won’t heal the photojournalist’s injuries, it won’t pay his medical bills as he would need to nurse those horrific injuries he was inflicted with ( seeing the shoddy treatment he allegedly received at the said hospital one doubts the wisdom in going back for more maltreatment, …sorry treatment..). It does not suffice as compensation which the law courts would gladly award all things been equal and it won’t in any way deter other evil doers from assaulting other people…

The future of Public Sector Health Institution Branding

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

So branding and design may focus on signposting information or communicating issues clearly in order to change people’s behaviour.

Like many others, we’ve been deeply saddened by the video clip of that brazen assault on citizen Uwaleke, this highlights the undignified attitude of some care givers towards people in our hospitals and care homes.

In too many cases, people like Uwaleke have been let down when they were vulnerable and most needed help.

We know there are some hospitals and care homes providing great care, and we need to learn from them to get dignified care right for every person, every time and at every place.

Hospitals and care homes should be lights to the rest of the community, demonstrating how we are all the richer when people are protected, respected, valued and celebrated. I mean if you are not safe from physical assault in a hospital then where are you safe?

We need a major cultural shift in the way everyone in care thinks about dignity to ensure care is person-centred and not task-focused.

It is absolutely clear that we all need to work together to improve dignity in health care and earn back public confidence in the health institutions in Lagos State.

 

Conclusion

Re-branding Lagos won’t be very effective when staff/ assorted hangers-on of public sector institutions go out of their way to negatively rebrand our beloved state with such despicable acts and vile behaviour.

An apology was the first step in the right direction, now we expect swift and hard sanctions Your Excellency!

Men set their hearts to do evil when punishment is slow in coming; it is probably not the first time such barbaric acts would have taken place, but as long as they remain unpunished men will continue to behave in such vile and despicable ways. Eko oni baje o!

Olufola Wusu Esq. © 2012

Counsel with Megathos Law Practice

Olufola Wusu is a Contract Review Specialist and Intellectual Property consultant

He can be reached at folawusu@yahoo.com

Legal Disclaimer

by Olufola Wusu Esq

(1) No advice

This note contains general information about [law and legal practice]. The information is not advice, and should not be treated as such.

(2) No warranties

The legal information on this article is provided without any representations or warranties, express or implied. We make no representations or warranties in relation to the legal information on this website.

Without prejudice to the generality of the foregoing paragraph, we do not warrant that:

(a) the legal information on this article will be constantly available, or available at all; or

(b) the legal information on this article is complete, true, accurate, up-to-date, or non-misleading.

(3) Professional assistance

You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider. If you have any specific questions about any legal matter you should consult your lawyer or other professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

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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

This note contains general information about [law and legal practice]. The information is not advice, and should not be treated as such.

(2) No warranties

The legal information on this article is provided without any representations or warranties, express or implied. We make no representations or warranties in relation to the legal information on this website.

Without prejudice to the generality of the foregoing paragraph, we do not warrant that:

(a) the legal information on this article will be constantly available, or available at all; or

(b) the legal information on this article is complete, true, accurate, up-to-date, or non-misleading.

(3) Professional assistance

You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider. If you have any specific questions about any legal matter you should consult your lawyer or other professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

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