Can Clothing Designs be Patented in Nigeria?
Elekwa A., Adewale I. and Badru Z.
Ugo Monye, a Nigerian men’s fashion designer and image consultant, popularly known for the ‘Ebuka Agbada’ which debuted in November 2017 at a celebrity wedding was recently copied in the movie, ‘Coming to America 2’ and the renowned fashion designer took to his Instagram to post a picture putting his design and the copied design in brown side by side alongside the caption[1]:
“Our patent (2017) Raele design a.k.a Ebuka Agbada replicated and featured in Coming to America 🤐”
The design was allegedly copied by Ruth Carter who designed the costume for the movie and was tagged in the post made by Ugo Monye. From the post, it can be deduced that the designer is calling the costume designer for infringing on his patented work[2].
Firstly, a Patent can be defined as the exclusive right given to an invention which can be a process or products which aims to provide a new way of doing something or offers a new technical solution to a problem. Patent law requires full disclosure of technical information about the invention. It provides that during the duration of protection granted to an owner, a third party without permission cannot use, make, distribute and import such invention or something similar[3].
There are certain requirements that must be met when seeking to obtain patent over an invention in Nigeria. They include;
i. Novelty- the invention must be new. It must not have been known to any existing body of knowledge. This body is also known as prior art
ii. Non-Obvious/Inventive Activity- this means that the invention cannot be obviously deduced by a person having ordinary skill in the relevant field
iii. Capable of Industrial Application- this means that it must be capable of being used for an industrial or business purpose and must be useful
Textile designs do not however fall under the purview of patents due to its lack of industrial applicability, technicality and it does not satisfy the requirement of non-obviousness. A clothing design is purely aesthetic.
In conclusion, a valid claim in Nigerian Patent Law does not exist, solely on the grounds that the Nigerian Patent and Designs Act, under the patent category, makes no room for registration of aesthetics. Patents in Nigeria are catered towards protecting novel inventions capable of producing a technical result and can be subject to industrial application.
The Nigerian Jurisdiction can however be compared with the US jurisdiction whereas a patent can be issued by the USPTO for utility and designs[4]. Design patents are used to protect the appearance of an object such as the design, ornamentation or the aesthetics of such object while utility patents offer a more general form of protection
The IP Category most suitable to protect his clothing designs in Nigeria would be industrial design which seeks to protect non-technical, aesthetic designs which such clothing designs fall under. Copyright protection shall also be given to the design as the woven designs on the fabric falls under the purview of artistic works under Section 39(1)(f).
[Disclaimer: this social commentary was written on the basis that the patent law Ugo Monye refers to is the Nigerian Patent Law].
[1] https://www.instagram.com/p/CMMrnavpCb-/?igshid=1919pfknjfqo4ni accessed 16th May, 2020.
[2] Kumashe Yaakugh, ‘Coming 2 America: Ugo Monye claims his famous “ Ebuka Agbada was copied, used in movie” [2020]https://www.legitng/1406525-coming-2-america-ugo-monye-claims-famous-ebuka-agbada-copied-movie.html accessed 16th May, 2020
[3] https://www.wipo.int/patents/en/ accessed 16th of May,2020
[4] U.S Code Title 35
