The significance of IP protection in the wake of the FCCPA 2019

By Olumide Osundolire & Faridah Saliu-Bello

Nigeria’s new Federal Competition and Consumer Protection Act puts in place specific checks on false advertisements, deceptive packaging and enhanced accountability on the part of vendors and service providers.

In February 2019, further to the outcry by consumers and business owners to have a body of laws that protect their interests, grow the economy and attract foreign investment, the Federal Government of Nigeria enacted the Federal Competition and Consumer Protection Act (“the FCCPA”). The FCCPA, which repealed the Consumer Protection Act, Cap. C25, Laws of the Federation of Nigeria, 2004, contains provisions to set market standards for business owners whilst ensuring that competition in the market is healthy and consumer protection is not jeopardized. This article highlights the concept of intellectual property rights (“IPRs”), why protection of IPRs is important and the provisions of the FCCPA that supports protection of IPR owners as well as protect consumers.

The concept of IPRs creates incentives among manufacturers and creatives to constantly invent and innovate, which ultimately promotes competition among these manufacturers and leads to an effective market structure that benefits the consumers, by creating time-bound monopolistic rights with respect to the exploitation of those inventions and innovations. A common feature of successful companies across the world is the consistent effort to push the development of innovative ideas and implementation of adequate measures for the protection of these innovations. Furthermore, one of the major objectives of IPR protection is to protect against unfair competition and generally prohibit any act of competition that is contrary to honest practices in industrial or commercial matters. As with most competition and consumer protection laws, the FCCPA seeks to balance these seemingly conflicting interests by setting rules aimed at ensuring that the IPR holders are not abusing their (dominant, if not monopolistic) position and which also protect IPR holders from unfair competition and encourage more competition and innovation in the market.

With a view to protecting IPR owners as well as consumers, the FCCPA has put in place specific checks on false advertisements, deceptive packaging and enhanced accountability on the part of vendors and service providers. Specifically, the FCCPA makes provisions for a bouquet of consumer rights, including the right to receive information in plain and understandable language; the right to have price of goods and services disclosed; the right to have products labelled and described; the right to have goods recalled; the right to fair dealings; the right to select suppliers; the right to choose or examine goods, among others.

In a similar vein, the FCCPA makes it compulsory for manufacturers, importers or distributors to label or describe their goods in a manner that can be easily traced back to them as the source of the product. This provision embodies the essence of trademark protection, as it seeks to ensure that consumers know the actual source and legitimacy of a product. In addition, transactional costs of consumers are reduced as they are saved from having to compare various trade descriptions to decide which vendor deserves patronage, instead goods are chosen based on origin. Also, this allows the manufacturers to appreciate the need to produce good quality products as this is what will be associated with them and will in turn drive consumers to purchase them.

Also worthy of note is the provision of the FCCPA that manufacturers/distributors have a duty to notify the public as soon as they become aware of any unforeseen hazard arising from the goods they introduce into the market. If IPRs did not exist or are not properly enforced and manufacturers do not brand their products, it will prove difficult to trace the source of the hazardous products and hold any persons accountable for damages caused.

Finally, the FCCPA provides for methods of enforcement of the aforementioned consumers’ rights. The enforcement of these IPRs present consumers the opportunity to hold the IPR holder accountable for their products introduced into the market place for consumption thereby guaranteeing their protection.

From the foregoing paragraphs, it can be deduced that more than ever, intellectual property protection has become vital to every commercial endeavor in Nigeria. However, a balance has to be struck when seeking to protect these IPRs to prevent establishment of monopolies which are anti-competitive and go against the spirit of consumer protection.

To achieve the objective of curbing the incidences of unfair competition and dishonest market practices, the FCCPA established the Federal Competition and Consumer Protection Commission (“the Commission” or “the FCCPC”) to administer its provisions. The Commission is primarily responsible for, inter alia, the promotion of competition in the Nigerian markets at all levels by eliminating monopolies, prohibiting abuse of a dominant market position and penalizing other restrictive trade and business practices.

The Commission is saddled with the responsibility to, amongst other things, initiate broad-based policies and review economic activities to identify anti-competitive, anti-consumer protection and restrictive practices which may adversely affect the economic interest of consumers. The Commission is also empowered to make rules and regulations to provide adequate safeguards and protection for consumers. As the primary regulator for consumer protection in Nigeria, the FCCPA empowers the Commission to deploy all available means within its disposal to ensure that consumers’ interests are given due consideration at appropriate fora and the appropriate redress is available for obnoxious practices and the unscrupulous exploitation of consumers by companies, firms or individuals.

In summary, the underlying objective of the FCCPA is to curb incidences of unfair competition whilst protecting the rights of consumers. Intellectual property laws provide a powerful legal basis for the attainment of these objectives. In providing a basis for the commercial exploitation of innovations and inventions and signification of source, intellectual property protection afforded under intellectual property law ensures availability of wide varieties of products and services as well as assists consumers to make informed choices. Where strict adherence is given to the FCCPA, the primary resultant effect is that vendors and consumers alike will have reduced encounters with counterfeit goods, and business owners will be forced to improve the quality of their goods and services. Accordingly, the enactment of the FCCPA by the Federal Government of Nigeria is laudable as it further reemphasizes the important role intellectual property has to play in ensuring economic growth and attracting foreign investment into the country.

About the authors

Olumide Osundolire
Olumide Osundolire is a proactive and versatile lawyer. He has spent the last decade being exposed to various areas of legal practice including but not limited to Commercial Law, Intellectual Property and ICT Law. His commitment to exceeding clients’ expectations, and the assurance of success in any transaction with which he is identified places him above the ordinary lawyer. Olumide is a Partner in the Intellectual Property and Technology Practice Group of Banwo & Ighodalo, a leading full-service commercial law firm in Nigeria. He has advised on various aspects of technology law from technology acquisition, to setting up of e-commerce platforms, drafting of regulations and procurement of operating licences. He is reachable at oosundolire[at]banwo-ighodalo.com.
Faridah Saliu-Bello
Faridah is an Associate in Banwo & Ighodalo’s Intellectual Property & Technology Practice Group. She has gained significant experience advising local and international brands on Trademarks, Copyright, Patent and Design protection. She also routinely advises clients in the media and entertainment space. She is an active member of the Nigerian Bar Association, the Intellectual Property Lawyers Association of Nigeria and Anti-Counterfeiting Collaboration, Nigeria. She may be contacted at fsaliu-bello[at]banwo-ighodalo.com.