The Legal Issues Surounding Mr Sabinus’s Funny Saga.
By Prince Ezeabata Chibuzor
For God so love man, that he bestow unto him the power to be a god, the power to create, and the will to inform his own life, but this power, this very power of man is useless to the extent to which man uses it, and this is used in relations to the thoughts he has, the choices he makes and the actions he takes. This is what defines a man, and this is creativity. The inalienable power in man to create an option out of necessity. This is the product of the imaginative will of man, which is called INTELLECTUAL PROPERTY.
One of Nigeria’s fast rising content creator, MR. CHUKWUEMEKA EMMANUEL , popularly known as MR. SABINUS slams a One Billion Naira (N1bn) suit on popular beverage company, FRIESLAND FOODS WAMCO NIGERIA PLC for the unauthorized use of his trademark ‘SOMETHING HOOGE . In an Instagram post on the 24 of May, 2022, the company used the phrase ‘SOMETHING HOOGE to advertise and promote their Peak Milk product.
In a similar development, SABINUS also demanded the sum of One Hundred Million Naira (N100m) from UAC FOOD LTD for the use of his animated image in an advert for the Gala sausage roll.
While it is best for the companies to settle out of court, some actually urges SABINUS to go to court as this will stand as a precedent to similar case and determent to individuals and companies from Intellectual Property Infringement in the future. Whatever the outcome of the case is, there are some legal issues that must be considered.
One. Whether or not, MR.SABINUS has a right in ‘SOMETHING HOOGE. The phrase SOMETHING HOOGE is a trademark protected under the Trade Mark Act of the Federal Republic of Nigeria.
According to the Ministry of Trade and Investment in Nigeria, 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.
A trademark could be a quote, a slogan, a motto, a phrase, a book or movie title and/or anything used to identify a brand, an organization or person. The owner of a trademark have exclusive right to use it, and reserves the right to grant usage to another, in exchange of a consideration.
The phrase, ‘Something Hooge’ could be just a slang, but it is the intellectual property of Sabinus. A creation of his mind and thus by virtue of its registration with the Trademarks registry, it is exclusively that of Sabinus in ownership, right and usage.
Thus, FOODS WAMCO NIGERIA LTD, adopting the phrase, in the promotion of its products is a violation on and the infringement of the right of Sabinus in his INTELLECTUAL PROPERTY. He is thus entitled to damages either in cash or kind. He can seek to settle out of court, under a mutual agreement or rather seek redress at the Federal High Court as that Court has the exclusive jurisdiction to entertain disputes arising from trademarks, by virtue of Section 251 (1)(f) of the Constitution of the Federal Republic of Nigeria, 1999 as Amended.
In relation to the use of an animated image which suggests MR. Sabinus in the promotion of a product by UAC FOOD LTD, without his consent is tantamount to PASSING Off, which is the use of a description, design, name or whatever similar to another, which is able to mislead the general public. The major purpose underlying the tort of ‘passing-off’ is the protection of an established trade goodwill. It presupposes therefore, that Mr. Sabinus lawyers have a duty to establish goodwill link towards the image. Goodwill is ‘the benefit and advantage of the good name, reputation and connection of a business. It is the attractive force which brings in custom’. They have to prove thus to succeed in this case that there is a goodwill attached to the image, which the infringements will cost him lose.
He and his Legal team also, have a duty to establish Passing Off. The law provides the ‘Trinity Test Rule, to establish the prima face Tort of Passing Off. RULE ONE states, that the claimant (that is the person alleging a breach of his right) must establish the goodwill or reputation attaching to the goods or services in question and the ‘get up’ under which the goods and services are offered to consumers. RULE TWO states, that the claimant must also establish that there has been a misunderstanding by the defendant which has caused or has the potential of causing the members of the public to believe that goods or service emanate from the Claimant. RULE THREE , the claimant MUST finally demonstrate that he has suffered or is really likely to suffer losses by the reason of the defendants misrepresentation as to the source of defendant’s goods or services, which seems to suggest that they emanate from the Claimant.
From the foregoing, Mr. Sabinus and his legal team has a more duty and job to do, which it to establish goodwill in passing off, and Passing Off itself.
Passing Off is an option, to protect a creator which intellection Property isn’t registered as a trademark, but it represents him, or a brand or organization. In the current case of Sabinus and UAC FOOD LTD, the animated image used could deceive members of the public. This will lead members of the public to believe Sabinus is an ambassador of the company, which would in return yield more profit for the company, but this isn’t enough to establish Passing Off.
In the light of this, the both has a duty before the court, should this matter goes to litigation, which in the best interest of both parties should be settled amicably out of court.
Prince Ezeabata Chibuzor is a Student Of Law With Core Interest In Intellectual Property Law, Business & Corperate Law And Commercial Litigation. He Is The Founder Of Association Of Creative Writers And Editor At The Acw-publishers Ltd.
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