So, some guy went and trademarked “Nollywood”…

 

News reached us in Nigeria a few days ago that someone (a man named Nicholas Opara) had applied for and received approval from the USPTO to register the word “Nollywood” as a trademark in the United States. At first it didn’t seem to me like something anyone should worry about but the Nollywood people at the NBA’s Section on Business Law Conference were clearly disturbed. There is a sense that anyone using the expression “Nollywood” in the context of our entertainment industry will owe Mr Opara money. This is incorrect, for the reasons given below.

 

You can see the USPTO report on the NOLLYWOOD trademark here. This tells us that the registration was in classes 35 and 38. (You can find our quick refresher on trademarks and classifications here.)

 

What does this mean? Well, trademarks are registered in connection to goods and services. So you can’t just walk up to the trademarks office and ask to register “TEXTHELAW” in abstract. You would have to tell them what goods or services will be branded with the trademark. In the refresher course link above, you will find that there is a standardised international classification of goods and services, available in most countries. In Mr Opara’s case, he registered NOLLYWOOD in connection with “Advertising; business management; business administration; office functions” (class 35) and “Telecommunications” (class 38).

 

What is the effect of the Class 35 & Class 38 registrations? It means that you can’t set up businesses that provide the services listed under these classes (i.e. advertising, business management, business administration, telecommunications) and use the word Nollywood in the business name or trademark of your company. Mr. Opara can set up Nollywood Telecoms or Nollywood Business Managers and it would be fine. It does NOT mean that anyone operating in our Nollywood needs his permission to use the word or that the industry as a whole is held to ransom by Mr. Opara.

 

Could he have registered the trademark in Class 41? The services listed under class 41 are “Education; providing of training; entertainment; sporting and cultural activities”. This is the class that would have given Nigerian practitioners real concern, as it would have meant that trading in the US as movie industry practitioners under the name Nollywood, would have infringed Mr. Opara’s registration. However, given the popularity and famousness of the term “Nollywood” worldwide and the industry it represents, it is unlikely that the USPTO would have agreed to a registration in this class. And if they did, it would be fairly easy to instruct a US attorney to challenge such a registration as the chances of getting it revoked are very high.

 

Should an actor or the Guild of Actors/Directors register Nollywood as a trademark in Nigeria? No. First of all, a trademark cannot be descriptive of the goods or services it brands. So, for example, you cannot register “PURE WATER” as a trademark to brand drinking water. In the same vein, “Nollywood”, which has come to mean the movie service industry segment of the Nigerian entertainment sector cannot be registered as a trademark for entertainment services, in my opinion. Secondly, the whole point of a trademark is to distinguish your goods and services from those of others. So even if the Nigerian Trademarks Registry somehow approved the trademark application, it would be a trademark of very little value, since the entire industry already refers to itself as Nollywood.

 

Did Nicholas Opara miscalculate or does he have something up his sleeve? My mentors in the legal profession taught us not to comment on speculation so they would probably be disappointed by this paragraph. However, the cynic in me thinks he probably tried class 41 initially and was refused, so he settled for the next best classes. Nonetheless, 35 and 38 registrations will not affect 41 services, especially if it’s clear that you didn’t invent the word. On the other hand, it is quite plausible that he wants to deploy Nigeria-centric services in the US and I guess this isn’t a bad thing. It wouldn’t be out of place, for example, to have Hollywood Drycleaners or Hollywood Barbers in Nigeria. If his plan is something more along those lines, then all the very best to him.

 

 

Sanusi’s Case: Where does Jurisdiction lie?

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Suspended CBN Governor, Mallam Sanusi Lamido Sanusi

This morning, I had the pleasure of viewing a debate between 2 highly esteemed learned friends on social media. The subject being discussed was the recent ruling by a Federal High Court that it had no jurisdiction to entertain the case filed by suspended Central Bank Governor, Lamido Sanusi, challenging his suspension by the President. The court decided that the National Industrial Court was the proper forum, as the matter appeared more employer/employee than anything else, and ordered the case to be transferred accordingly.

Now, jurisdiction is perhaps the most fundamental issue in litigation. It goes to the heart and validity of any case. Anything done by a court in respect of a matter in connection to which it has no jurisdiction is a nullity. My first learned friend argued, as she had stated since the suit was initially filed, that only the NIC had jurisdiction. My second learned friend argued that certain provisions of the constitution nonetheless vested the FHC with jurisdiction. My first learned friend disagreed. So, what does the constitution say?

First of all, let us examine the section of the constitution advanced by my first learned friend in support of her argument; Section 254 C, which states –

254 C- (I)      Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-

(a)      relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith;

Is Sanusi’s suit in connection with employment? On the face of it, yes. Additionally, I emphasised certain keywords in the referenced section, whose importance you will see in the section of the constitution advanced by my second learned friend; Section 251, which states –

251(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-

(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies;

Is Sanusi seeking a declaration affecting the validity of an action or decision by the President/Federal Government? Yes, he is. So you see the conundrum here. Both 251 and 254 are literally notwithstanding each other and yet appear to have “exclusive” jurisdiction over the subject matter of this lawsuit.

I don’t envy judges. Additionally, I am confused and unable to pitch my tent with either of my learned friends. What do you think?

 

 

Hopeless Nation, Hopeful People: Commentary From South Sudan

In an earlier post today, I remarked, with regard to levels of certainty about Nigeria’s “nearing implosion that –

People talk about getting [tourist] visas for everyone in their family and all, but (1) I don’t think the usually congested route to MMIA would suddenly open up for us to flee sedately if that day of crisis came; and (2) that still sounds like their hedging, meaning either that they/we do not really think things are that bad, or that this almost-certain catastrophe is not quite certain to happen.

A reader with the benefit of similar experience in South Sudan posted a comment directly relevant to this and has given me permission to reproduce the comment in full, below. What is clear is that escaping will not be as simple as booking a ticket and taking a leisurely drive to the airport.

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Many people are quite clueless about what it takes to evacuate their families. They assume that because they can afford between 1-3 international holidays a year a UK/US visa will somehow get them out of here if shit hits the fan. I lived in South Sudan the last few years and from practical experience, this is how it works.
Living abroad is expensive and we don’t want to pack up and leave until we are absolutely sure, besides someone has to work to fund the hasty exit. So no one ever knows/ wants to believe that shit will hit the fan until it does. The people who know already have their families tucked away somewhere safe and can afford to keep them there indefinitely. Commercial flights will stop running. Expats and diplomats will be the first out. Then the truly wealthy. Then non-nationals. We will not be able to go online and book tickets and then trot off to pay at the banks. Cash will be the only language spoken and even then, given our population there will probably not be enough private exorbitantly priced planes to get us out. We will be forced to leave most of our belongings behind.

Shit will get real when there’s no petrol cos the army needs it all. No work, no salary. No banks. No electricity. No food to buy even if you have money. Massive inflation.

Anyone who wants a split (which would never be peaceful) does not realise how devastating war can be. How it feels to lose EVERYTHING. Nigeria has to work. We have to make it work.

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Let us therefore not lose hope. And let us then do what we must to make the country work.

Hopeless Nation, Hopeful People

A question that’s plagued me since social media journalism and analysis attained near-mainstream popularity is: Why, if you’re so convinced that Nigeria is doomed, are you not hightailing your ass out of here? If the consensus from the emerging intelligentsia is that we’re on the brink of an apocalyptic implosion, should we not be doing everything in our power to ensure that we escape before the tribulations start?

 

People talk about getting [tourist] visas for everyone in their family and all, but (1) I don’t think the usually congested route to MMIA would suddenly open up for us to flee sedately if that day of crisis came; and (2) that still sounds like their hedging, meaning either that they/we do not really think things are that bad, or that this almost-certain catastrophe is not quite certain to happen.

 

Okay, fair enough, without boring you with the dismal indices with which you are already familiar, the prognosis does not look too good. But if we’re staying put, it’s either because we ‘ve decided we have nowhere else to go, or we secretly know (or hope) that things will get better. And even if we don’t believe things will get better, since we’re stuck, it’s probably in our best interests to make things get better. I mean, we’re stuck here anyway, so we do we have to lose?

 

In the midst of my musings, I have found some suggestions in music. And while the 2 songs I want to share are from the same “Save Nigeria” genre as Veno Marioghae’s Nigeria Go Survive, Kingley Bucknor’s Let’s Dave Nigeria, and King Sunny Ade’s Nigeria Yi Ti Gbogbo Wa Ni, these two songs have struck a different chord for me (yes, pun intended).

 

The first song is Ese Peter’s The Prayer.

 

 

Ese sings:

 

May all of your days be as bright as the sun

And all of your fears all fade with the dawn

And when the storms come, they will come like a flood

But not for long, no, not for long

 

May all of our children reach out to the wind

Find the magic, like kings and queens

And when the sky falls, it will fall like a war

But not for long, no, not for long

 

The second song, which resonates even more deeply for me, is Timi Dakolo’s Great Nation.

 

 

Timi sings about us taking a stand and healing our land. He sings further:

 

We’re all we have, we’ll defend our land

We believe in this nation, and we know we’ll get there

We’re all we have, we’ll defend our land

We believe in Nigeria and the promise she holds

And that one day we’ll shine like the sun

We’re a great nation

 

For me, these songs are different from the previous Save Nigeria songs because, rather than the usual do-your-part-and-I’ll-do-mine tack, they inspire hope. Now, it might seem a huge U-turn for this logic merchant to suddenly start peddling hope, but all will truly be lost once hope is lost. Nothing hopeless is worth fighting for. Of course, hope will not result in overnight changes to this system, but guess what? There will be no overnight changes anyway. They will take time and will require sustained pressure on government, as well as an ethical revolution on our part.

 

If we’re not running away, realising that “we’re all we have” and making the choice to “defend our land” sounds like a good alternative to me. You?

Presidential Media Chat: The Language Problem

The presidential media chat of the 4th of May 2014 was another opportunity for Nigerians to hear their president “unscripted”. As with most  media chats he has hosted since becoming president, yesterday’s also provided canon fodder for those looking for gaffes to fuel the next internet meme.

In his previous media chats, President Jonathan provided such timeless soundbites as “Stock market business is not a jackpot business”, “Wikileaks is just like a beer parlour gossip”, and “Libya is just like someone is carrying a pot of water on his head and it just fell and broke, GBOA.” When asked to comment on allegations of his wife being investigated for money laundering after reportedly being apprehended with $13million dollars at an airport, his response was “Have you seen $13m in cash? Is it something one person can carry? Can only you carry it?”

Last night, his response to a question on the claims by ousted CBN governor that $50billion in oil proceeds was unaccounted for, was first of all “Oil money gets missing in every administration.” Then, after some wiggling and wriggling, he concluded that “$50billion cannot be missing and America will not know. America will know. It is their money. Where will you keep $50billion dollars?” And this was after he relayed Sanusi’s claim that the money was missing from over 18 months’ proceeds.

There is the argument to be made, with some merit, that these expressions are unbecoming of the president of any country, not only from a language perspective, but also from one of logic. If one person cannot carry $13m in cash, how about 10 people? When last did Patience Jonathan travel without an entourage? And if never, what suggests she couldn’t have arranged one on the said occasion? $50billion, over 18 months, shared between several people is not a lump sum block of money waiting to be seen and known by America.

However, it may be that the language problem exceeds the logic obstacle. A PhD having challenges with either language or logic is something of an oxymoron, but here we are. I do not intend this to be disparaging but it appears that meanings frequently get lost in translation  when the President transits from the language he thinks in to the one he is required to speak in. It is a problem many multilingual people with unequal levels of fluency would face.

For instance, and this is probably an indictment on me, when I’m speaking in Yoruba, I find myself thinking or processing the conversation in English. Thus, sometimes, I am halfway through a “transliteration” before I correct myself and use the proper Yoruba phrases. For many native Yoruba speakers, it is the reason why you’d hear someone say “What did you carry in the exam/race” when asking for the person’s position – Ki l’o gbe?

It may be the reason why the President’s wife, tearful, lamented,”There is God o! There is God o!”, for either ‘God is real’ or ‘God sees all this’.

It may be why the President said, last week, “I  have lived three quarters of my life on earth” (and the other quarter on Mars, it was joked) when he meant that he had expended 3 quarters of his life expectancy. Or why he said, last night, when defending but not really defending MEND, “MEND are not terrorists…I’m not defending MEND because I’m from the Niger Delta”, when a clearer version was probably “Do not think that because I’m from the Niger Delta I’m defending MEND.” I do not know. I’m guessing.

Besides problems with translations and transliterations however, there are also issues with  his unique choice of words. “Every administration has missing oil money”; “Terrorism in Nigeria is because, well you know, if you want to attack the Black race, and Nigeria is the centre of the Black race…”; “They have advised me, I won’t say from where, that I shouldn’t attack Sambisa Forest, so that the Boko Haram won’t melt into the general populace…”; “We are the current champions, we hold the trophy, we hold the shield – let APC inform us who is the challenger…” all do leave a lot to be desired.

Many also complained about the very basic level of his illustrations. For example, to explain rebasing, he used a farming allegory about taking account of more produce than was previously customary. I thought it was a functional example, really, but this brings me to the wider issue of the general levels of education, reasoning and argument in Nigeria. The President is our everyman. He is the people in your neighbourhood, the people that you meet when you’re walking down the street; the people that you meet each day. Millions of us cannot write letters or emails without several lines of bad grammar, many cannot hold a rational argument (or any argument for that matter) without quickly descending into insults and ad hominems, and millions more are functionally illiterate. L’etat, c’est nous. Le President, c’est nous aussi.

We are unlikely to have an Obama/Cameronesque leader, in my opinion, until we become like the people that Obama and Cameron lead – in business, in national conscience, in political engagement and, most of all, in learning and literacy.

I suspect that the majority of the Nigerian people would have found last night’s media chat satisfactory. Or, at the very worst, the President’s performance did not affect his approval rating by too much. For people that would harp on eloquence and inspiring speech though, it must be said that the number one contender from those challenging the PDP for its trophy is not much better. So, will use of language really count when we go to the polls in February?

 

5 Reasons Why GEJ Should NOT Resign

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In the wake of 2 bombings in Nigeria’s capital Abuja, the second taking place barely three weeks after the first, some people have resorted to calling for President Jonathan to resign or, alternatively, for the National Assembly to commence impeachment proceedings against him. I  disagree. While it is true that scandal continues to follow scandal, bombing follows bombing and national morale is undoubtedly very low, I do not think the President’s resignation is required. Here are my reasons.

 

1. THIS IS A DEMOCRACY. If we truly believe in democracy and the need to build enduring democratic institutions, then, barring gross misconduct, we need to accept that we are stuck with whoever we elect for the duration of time prescribed by the constitution  for them to be in office. We don’t get to chop and change midstream if the person we elected turns out not quite as we expected. This is the reason why we must pay greater attention and commit to playing a greater part in the electoral process first. The earliest that GEJ should go, is May 2015, when everyone crying #GEJOut can test the popularity of their movement at the polls.

 

2. WHO’S NEXT IN LINE? If the President resigns or is impeached, Vice-President Namadi Sambo takes over. If they’re both impeached, Senate President David “telephones-are-not-for-the-masses” Mark becomes President. Forgive me for not being too enthused about either of these prospects. At any rate, how would this change anything, with elections less than a year away?

 

3. GEJ IS NOT THE SERVICE CHIEFS. These guys need to get a whole lot more of the blame than people are willing to allocate to them. GEJ is Commander-In-Chief but he’s not the head of the intelligence gathering or counter-insurgency combat teams. He isn’t personally manning check-points or patrolling the terror hotspots. His Generals and their troops are. If anyone should be resigning (and that’s a big “IF”), the service chiefs are probably better candidates.

 

4. RESIGNATION WOULD BE A(NOTHER) VICTORY FOR BOKO HARAM. Would it not be the greatest tragedy, a huge smear on our collective nationhood, for Boko Haram to be able to beat its chest and declare that they bombed our president out of office? At the end of the day, until he’s served out his term, he is our president; our number one citizen. A king defends his castle. It would be a shame on my family if an unruly neighbour could unseat my father from our homestead. I’m sure the same applies to most of us.

 

5. RESIGNATION WOULD ONLY SERVE THE ETHNIC SUPREMACISTS. There are some who believe the President of Nigeria cannot and should not come from one of its smallest minorities. Nigeria belongs to all Nigerians. I will be politically correct and end my 5th point on that note.

 

Times are dark and dire, though, and we need our president to be bold, brave, inspirational and communicative. Not a word from him so far on the 200+ missing school girls, or the most recent bombing. Even if it’s hot air, we need to hear that he’s with us, see him shed an Obama tear or two and just generally show some emotional intelligence. Step up, President Jonathan.