According to Section 67 of the Trade Marks Act, as amended by the Business Facilitation (Miscellaneous Provision) Act), “trademark is defined as a mark used or proposed to be used about goods or services to indicate a connection between the goods or services and a person having the right, either as a proprietor or as a registered user, to use the mark, whether with or without any indication of the identity of that person and may include the shape of goods, their packaging, and combination of colours.” A registered trademark establishes the right to identify a good or service and prevent others from imitating it.
For instance, Wizkid, a well-known musician in Nigeria, trademarked the name “Star Boy”. This is in tandem with Section 5 of the Trade Marks Act which provides that the registration of a trademark gives a person the exclusive right to use that for specific purposes.
Trademark registration has two important implications. First, the trademarking of any component of a celebrity’s persona indicates that the celebrity is permissive of the approved assignment or licensing of their persona (such as their name, image, slogan, or logo), for the purposes for which registration has been requested. Second, the celebrity gains the ability to prevent illegal usage of registered facets of their personality. A registered trademark will be violated if used for any venture without the authorisation of its owner.
The Copyright Act in sections 9, 10, 11, 12, and 13 gives the “author” the exclusive right to control the commercial use, production and reproduction, broadcast, adaptation, and distribution of literary, musical, broadcast, artistic, audiovisual works, and sound recordings. In this instance, a celebrity comes under the ambit of the author of his image and has the right to enjoy these provisions if such work has been fixed in a tangible form.
As a direct consequence of the authorship rights of the image, the celebrity also enjoys what is known as moral rights under section 14 of the Act. This right affords the celebrity the right to claim authorship, object to mutilation, distortion, or modification of such works, as well as transfer the rights through testamentary instruments or by operation of law. This means that third parties cannot use celebrity images for commercial purposes without obtaining prior permission or license from the celebrity.
When a person’s name, likeness, or performance traits are appropriated by another, the activity of passing off can be said to have occurred, and a need is created to institute a passing off action. The unlawful use of a celebrity’s “goodwill” or “fame” by fraudulently claiming the endorsement of products by the celebrity may also be considered as passing off. When a passing off action is instituted, three vital elements — also known as the classical trinity — must be proved as provided in the case of Reckitt & Colman Ltd V Borden Inc. Firstly, the Plaintiff must first prove that there is goodwill or reputation attached to his goods and services. In this case, the celebrity must prove that his image is renowned for its goodwill or reputation. Secondly, such a celebrity has to prove that there has been a misrepresentation to the public of the same image. Lastly, he must also prove that as a result of the misrepresentation, he has experienced loss in one form or the other.
The Cybercrime Act provides in section 16 for cybersquatting which entails the intentional use of a name, business name, trademark, domain name, or another word or phrase registered, owned, or in use by anybody corporate, individual, or governmental body in Nigeria without authority or right. The Act goes further to provide a punishment of two years imprisonment or an alternative fine of N5,000,000 or both. Affected parties may therefore legitimately seek redress or compensation for the violation of their intellectual property rights in cases where an image is protected by trademark or copyright laws and violated through the use of digital technology.
To protect the reputation and financial interests of celebrities in Nigeria, celebrity image rights must be protected. Celebrities must play a significant role in enforcing their image rights by taking proactive measures, such as registering their trademarks, copyrights, and other intellectual property rights. Additionally, celebrities should use legal professionals to make sure that their image rights are properly safeguarded and defended against any violations. Celebrities can do this to uphold their reputation, increase their commercial value, and leave a lasting impression on future generations.
Concluded
Olomu is a law student at Lagos State University.