Intellectual Property Infringement- A case study of Sabinus – PART 1- “SOMETHING HOOGE”

INTELLECTUAL PROPERTY INFRINGEMENT- A CASE STUDY OF SABINUS. PART 1- “SOMETHING HOOGE” His name is Chukwuemeka Emmanuel. A popular Nigerian online comedian, fondly referred to as
“Sabinus” (The name of the usual character he plays in his skits) . A few weeks ago, Sabinus’ manager made an announcement on social media regarding the alleged infringement of his client’s
intellectual property by Friesland food Wamco Nigeria (manufacturers of peak milk) and UAC food
ltd (manufactures of Gala sausage roll) and demanded for the sum of One Billion Naira
(N1,000,000,000.00) and One Hundred Million Naira (N100,000,000.00) from them respectively as
damages for the infringement. We would focus our discussion in the first part of this article on the alleged intellectual property
infringement by Friesland Food Wamco (manufacturers of peak milk) for the use of Sabinus’ slogan
“something hooge” in the advertisement of their product. Let us start by giving a brief explanation of Intellectual property.
Intellectual property can be described as the fruits or products of human creativity, unlike real
property which can be identified, intellectual property deals with intangible creation of the mind and
may include inventions, songs, slogans and so on. There are several types of intellectual property
rights such as copyright, trademark, patent and industrial design. For the protection of phrases and
words the applicable intellectual property right would be a Trademark. A Trademark is a word, name, phrase, symbol or combination thereof used by a person or business
entity or proposed to be used to identify and distinguish goods and services from those
manufactured or sold by others. Trademark is hinged on distinctiveness. Section 9 of the
Trademark Act provides for what can be registered as a trademark. They are:
1. The name of the company, individual, firm represented in a special manner;
2. The signature of the applicant for registration;
3. An invented word or words;
4. Word or words having no direct reference to the character or quality of goods and not being
according its ordinary signification in a geographical name or surname; and
5. Any other distinctive mark. As stated above, the phrase “Something hooge” can qualify to be registered as a trademark as it
falls under the category of invented word or words. An invented word or words is one not found in the lexicon devised by a proprietor and applied to a
product or goods. An invented word or words also includes a word with unique spelling or a joining
together of two existing words to form a new word.

Most people will agree that when they hear the phrase “something hooge” the first person that
comes to mind is Sabinus. This is because the phrase was coined by Sabinus to be mentioned in
his various online comedy skits. Now, the most important question here is can the manufactures of peak milk be liable for the
infringement of Sabinius’ trademark?
Section 3 of the Trademark Act provides that no person shall be entitled to institute any
proceedings to prevent or recover damages for the infringement of an unregistered trademark. It
follows therefore that if “something hooge” has been registered by Sabinus as his trademark, he
would be within his right to demand for damages from Friesland Foods Wamco (peak milk) for the
unauthorized use of his trademark. Moreover, the advertisement placed by the company spelt the phrase in the exact way Sabinus does. Had they used the phrase “something huge” instead of “Something hooge” the case might have
been different. On the flip side, if Sabinus did not register “something hooge” as his trademark, or his registration
is pending, he may not be able to institute an action for trademark infringement. However, all hope is not lost if this is the case, as Section 3 of the Trademark Act went further to
state that an unregistered trademark can still seek remedy through the tort action of passing off. Passing off arises where deception is made in the cause of trade, it may exist when one party affixes
another’s trademark to its goods or adopts a trademark that is so similar to that of another that the
consumers are deceived. The tort of passing off seeks to protect the good will or reputation of a
business and can prevent a person passing off goods as that of another to deceive the public. To maintain a successful action for passing off you have to prove
1. You have a goodwill or reputation
2. That there has been a misrepresentation by the person using the mark
3. That you have suffered or likely to suffer damages.

In conclusion, the constant innovation in technology especially with regard to the internet and
social media has brought about an evolution in the entertainment industry,making online creatives
major participants in this industry. It is therefore advised that online creatives/ content creators and
other stakeholders in this space be mindful of protecting their intellectual property rights which
from time to time originates from their creative works as quickly as such works gain influence. Are you a creative/ artist or content creator, and you need legal advise on protecting the intellectual
property of your creative works? Feel free to send an email to info@sunesislegal.com.

DISCLAIMER: Please note that this article is a publication of Sunesis Legal, and is only intended to provide readers with general information on the subject matter. It should not be construed as legal advice, and does not by itself create a client/attorney relationship between readers and our Law Firm. We are available to provide specialist legal advice on the readers’ specific circumstances when they arise. To book a consultation with us send an email to info@sunesislegal.com

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