Oga Sabinus vs. Friesland Foods & UAC of Nigeria Plc: A Legal Opinion on the Alleged Intellectual Property Misuse

Abstract

This article examines the intention to sue letter sent (and made public) by a Nigerian comedian through his lawyer to two Nigerian companies. In the letter, the comedian had pointed out that two companies—Friesland Foods Wamco Nigeria Plc (the makers of Peak Milk), and UAC of Nigeria Plc (the makers of Gala)—had used his intellectual properties in their Instagram adverts, and thus demands compensation from them in the sum of N1 Billion, and N100 Million, respectively. The first company has been alleged to have infringed the comedian’s registered trademark—“Something Hooge”—and the second company has been alleged to have used an image (which is a caricature of the comedian) without permission.

As regards the trademark infringement, this writer examined the comedian’s claim based on the Classes covered by the comedian’s trademark per the Nigeria Classification of Goods (and the Nice Classification) against the use by the company, and concluded that the use by the latter does not constitute a breach of trademark infringement. The point was also made that the comedian will be able to recover regardless of differences in class use, only if the comedian’s trademark is a “famous mark”. An assessment of whether the comedian’s trademark is a famous mark showed it is not, thus suggesting the action for trademark infringement will fail against the first company. As regards the second company, the allegation was examined under the tort of “right of publicity”, and “copyright infringement”. In both instances, the comedian’s action is also likely to fail based on the requirements for successfully proving a right of publicity action, and the fair dealing exemption in copyright infringement cases. Other arguments such as “copyright standards”, and “transformative use” were also examined.

Keywords: Trademark Infringement, Right of Publicity, Copyright Infringement, Oga Sabinus

JEL Classification: O34