April 05, 2007 1327 VIEWS
  • Copyright
  • Communication and Media
  • Trade Mark








Skye Bank In Court Over New Promotional Jingle.


Skye Bank Plc has been taken to the Federal High Court in Lagos over the use of “I wish I knew how it will feel to be to free a song co-composed by Bono, Clayton Adam, Dallas Dick, Mullen Lawrence and other members of the Irish Rock group “U2 but performed and made popular by another pop group; “The Lighthouse Family.


In the suit, Musical Copyright Society of Nigeria (MCSN), the owner and exclusive licensee of the work for the territory of Nigeria, is complaining about the flagrant abuse and use of the work by the bank without a requisite licence. The complaints by the right owner include illegal reproduction, adaptation, illegal recording, and unlawful synchronizing of the work by the bank all in the course of using the said work for the promotion of the bank's business.


The bank in its defence is asserting that it was granted the licence to use the work by The Performing and Mechanical Rights Society (PMRS). PMRS who is now seeking to join the action is of the view that being the only (purported) licensed collecting society in Nigeria, it has the right to licence any musical work to any prospective user whether or not the composer of the work has licensed or assigned his rights to PMRS. Another party seeking to join the suit is Centerspread FCB Ltd (the advertising agency of Skye Bank) who in her opinion should be allowed to state their own side of the case.


The court has since adjoined to the 4th of April 2007 to consider the two applications for joinder. The resolution of this matter will establish whether a licensed collecting society can grant a further licence to a user of work despite the fact that the society does not have an assignment of the work and the composer/performer is not a member of the society.


Stop Press!


The Federal High Court has on April 4 2007 joined PMRS in the suit but refused to join Centerspread FCB Ltd. Centerspread being an agent of a disclosed principal could not be joined as they cannot be foisted on the plaintiff who argued against their joinder.




NCC Arraigns Multichoice MD In Court


The Nigerian Copyright Commission (NCC), on March 16, 2007, arraigned Collins Khumalo, Managing Director, Multichoice Nigeria, before the Federal High Court, Abuja, for allegedly pirating both Spanish La liga and UEFA sporting events matches in Nigeria.


Khumalo was arrested Wednesday, 14th March 2007 by a combined team of NCC and police officials at the Sheraton Hotel and Towers, Abuja, venue of the BOB TV 2007 film festival, and was released on bail on Thursday, 15th March.


He was accused of infringing on the broadcast rights won by HITV (an upcoming DTH provider) in August 2006, which permits HITV to broadcast both Spanish La Liga and UEFA matches in Nigeria live.


It was gathered that Multichoice was warned by the NCC, upon complaints by HITV, about the alleged piracy but went ahead to broadcast the matches for five weeks before it stopped.


The company was then reported again to the NCC by HITV, upon its defiance, Khumalo was arrested by the police. Vincent Oyefeso, personal assistant on media to the Director-General NCC, confirmed Khumalo's arrest, stating that he was arrested based on official complaints and that the decision to arraign him in court was taken upon investigation.


“He was duly arrested in line with the provision of the Copyright law over infringement of copyright and was released on bail with 2 sureties on Wednesday, 14th March, 2007. We still continue our investigation and the commission will go to court at the appropriate time Oyefeso said.


When he was told that Khumalo would be arraigned on Thursday 15, March 2007, Oyefeso reacted: “I don't know that now unless I re-confirm from my boss.




PMRS Takes NCC To Court Over Refusal Of Approval


The Performing and Mechanical Rights Society has dragged the Nigerian Copyright Commission (NCC) to the Federal High Court over the refusal of the latter to renew or revalidate the licence of the former to carry on as a collecting society in the territory of Nigeria.


Over the years, Musical Copyright Society of Nigeria (MCSN) and Performing Mechanical Right Society (PMRS) have been involved in dispute as to collection of licence fees for use of musical works in Nigeria.


With various cases pending in court between the two societies, PMRS is claiming to be the only collecting society in Nigeria while MCSN is seeking to establish the fact that it has rights as an exclusive licensee by virtue of rights assigned to it by various artistes and various international collecting right societies.


In a bid to end the rancor between these societies and settle the issue of collection of royalties on behalf of artistes, NCC has refrained from renewing or revalidating the licences of both parties. This refusal however, has given rise to a suit against NCC by PMRS in which PMRS seeks, among others, an order of court to quash the refusal of NCC to grant its application for renewal as well as an order preventing NCC from giving such approval to any other society as it affects MCSN's application.


Nonetheless while the various matters are pending in court over the issue of collecting society and licensees of copyright, the parties (NCC, PMRS, MCSN and even the Attorney General of the Federation) have been exploring means of settling the dispute outside the court room. There has been a suggestion of merging the two societies and thereby establishing a single collecting society as licensee of right in the musical works of artistes. Instead of awaiting the resolution of this matter PMRS resorted to the courts. In a twist of the tale however MCSN has filed an application to join the suit on the ground that it will be affected by the outcome of the resolution of suit if tried.


Surprisingly at the last hearing PMRS sought for an adjournment to exploit the possibility of an out of court settlement of the dispute. It is important to note that this was the stand of the NCC and the Attorney General of the Federation before PMRS resorted to a court action.




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Nigerian Copyright Commission Issues Regulation on Copyright (Optical Discs Plants)!


The NCC on Tuesday 3rd April 2007 released its regulations on optical disc plants in Nigeria. A copy of the bye-law will in the next two weeks be available on WWW.AEandElegal.com



Communication and Media




Government To Merge Communications And Broadcast Regulatory Bodies.


Plans have been concluded by the Federal Government to merge the broadcast media regulatory organ, the National Broadcasting Commission (NBC) with the Nigerian Communication Commission (NCC).This follows the recent merger of the Federal Ministry of Information with the Federal Ministry of Communications.


Before the recent government reform, which saw the integration of some ministries, there had been talks on the forthcoming merger of the two parastatals, though NBC had insisted that it did not share the same functions with the NCC. But the recent merger of the Communications and Information ministries settled the matter.


Information and Communications Minister, Mr. Frank Nweke Jnr, who dropped the hint on the merger when he visited the headquarters of the NCC recently in Abuja, disclosed that the Federal Executive Council (FEC) had given its nod to this effect.


He added that the Federal Government would within a few days come out with a statement on the headship of the institution; the name and framework under which it would work, considering that both institutions were established by an Act of Parliament.


Nweke, who described the merger of the two ministries as right step in the right direction, said: “The kind of job they do here tells you that perhaps if we were pragmatic enough, we would not have established NBC because the NCC has the capacity to carry out the same function the NBC is performing.

He noted that the telecommunications sector was one of the areas, which the government had paid huge attention due to its ability to provide Nigerians with adequate information, employment and attract foreign investment into the country.




Trade Mark




Levi's Turns To Suing Its Rivals


United States Patent and Trademark No. 1,139,254 is not much to look at: a pentagon surrounding a childlike drawing of a seagull in flight. But the design for a Levi's pocket, first used 133 years ago, has become the biggest legal battleground in American fashion. Levi Strauss claims that legions of competitors have stolen its signature denim stitches two intersecting arcs and a cloth label for their own pockets, slapping them on the seats of high-priced, hip-hugging jeans that have soared in popularity. So Levi's is becoming a leader in a new arena: lawsuits. The company, once the undisputed king of denim and now a case study in missed opportunities, has emerged as the most litigious in the apparel industry when it comes to trademark infringement lawsuits, firing off nearly 100 against its competitors since 2001.


The legal scuffles offer a rare glimpse into the sharp-elbowed world of fashion, where the line between inspiration and imitation is razor thin. After all, clothing makers' trade secrets are hung on store racks for all to see, and designs can be quickly copied with small changes to exploit a hot trend. The lawsuits, which Levi's says it is compelled to file to safeguard the defining features on its jeans, are not about the money one settled for just $5,000 in damages. Instead, the company says, they are about removing copycats from stores. Nearly all the cases have settled out of court, with Levi's smaller rivals agreeing to stop making the offending pants and to destroy unsold pairs.


But those competitors say the lawsuits are the last resort of a poor loser, a company that has lost billions in sales, laid off thousands of workers and flirted with bankruptcy as the denim industry exploded. "They missed the boat," said Tonny Sorensen, chief executive of Von Dutch Originals, a six-year-old denim and clothing manufacturer sued by Levi's six months ago for allegedly borrowing the company's double arcs for a back-pocket design. "Now they want to make a lot of noise and scare people away."


Sorensen said his pocket design "did not look like Levi's at all" because of subtle differences like placing the arcs "one inch to the left" and stitching a line to resemble" a pirate's hook." Nevertheless, Von Dutch agreed to remove the jeans from dozens of boutiques and destroy hundreds of unsold pairs. "It was one style and it was not that successful anyway, so we made the decision not to fight it," Sorensen said. In the majority of cases, Levi's accuses competitors of copying its design of two arcs that meet in the center of the pocket or its famous Levi's tab a folded piece of cloth sewn into the vertical seam of the garment.


Robert Hanson, Levi's president for North America, said the company manufactured "a product that a lot of people are copying and copying with a lot of success." Instead of relying on Levi\'s designs for what he called a "running start," competitors should "look for other devices that don't come remotely close to the Levi's trademarks," Hanson said. "Be more innovative."


But the privately held Levi's, whose founder sewed together the first pair of jeans in 1873, has been unable to exploit the latest $200-a-pair denim craze and now claims scores of smaller competitors are riding high because of what it created. When consumers' tastes shifted toward designer jeans that were bejeweled, torn and frayed, Levi's was still selling basic $30 pairs at K-Mart.


In this dispute, back-pocket stitching has become the fashion equivalent of ink blots, with plaintiffs and defendants seeing in the new designs what they want, or need, to see. So far, Levi's view is prevailing.


The company's team of denim detectives there are 40 across the world, scouring boutiques and department stores  has spotted what they considered offending stitches on jeans from the biggest names in the clothing business: Guess, Zegna, Esprit, Lucky Brand and Zumiez, to name a few.


Even companies that have painstakingly worked to avoid infringing on Levi's trademarks have found themselves in the company's crosshairs. At Rock & Republic, one of the country's fastest-growing jeans makers, designers intentionally placed a cloth label on the right hand side of a back pocket, not the left, which would violate a Levi's trademark.


Levi's sued anyway, arguing its trademarks forbid placing such a label on a vertical seam of a back-pocket. During a tense, five-hour settlement discussion in San Francisco several weeks ago, the chief executive of Rock and Republic, Michael Ball, upbraided Levi\'s lawyers for their aggressive tactics.


"I take it personally that you try to dictate how I design my jeans," he recalled saying. Still, Ball said he agreed to stop placing the label on the vertical seam of a right-hand pocket for two years to avoid a drawn-out legal battle.


In an interview, Ball said his back-pocket stitching "was not remotely close to Levi's" and that he agreed to a settlement, in part, because "I will get bored with that design soon anyway."


Executives at Levi's concede they missed important fashion trends as the denim industry ballooned over the last several years, but they deny the lawsuits are connected to any downturn in their business. Instead, they say they are simply trying to preserve their intellectual property. Like pharmaceutical companies that sue generic makers over their patents or technology companies that duke it out over who owns the right to microchip designs, Levi's says it is trying to protect its most valuable asset, its trademarks.


Clothing companies have battled counterfeiters and each other for decades over design trademarks. Lacoste has defended its alligator, Polo Ralph Lauren fights for its polo player and Nike fiercely protects its famous swoosh.


In that respect, Levi's is no different. As far back as the 1970s, it sued the firm that made Wrangler jeans over the use of identifying tabs on clothing.


"We protected our trademarks when business has been terrific and when it's been difficult," said Hanson. Yet difficult only begins to describe Levi's business today, after it failed to exploit the designer denim boom in what is widely regarded as one of the biggest debacles in the American clothing business. Levi's sales have plummeted more than 40 percent since 1996 to $4.1 billion, forcing it to close dozens of factories and lay off nearly half of its workforce, or 7,600 employees, in the last five years.


The clothing company faced two major problems over the last decade. Its image and brand button fly, rugged and all-around bad-boy cool was largely built for men, its jeans cut boxy and loose- fitting. At the same time, the company, which once distributed its jeans largely through department stores catering to the rich, had shifted into lower-priced retailers like J.C. Penney, Sears and Wal-Mart.


In the mid-1990s, though, the denim industry underwent a seismic shift as small upstarts began designing tight-fitting, feature-flattering women's jeans and distributing them through luxury boutiques and department stores.


Women suddenly began snapping up jeans from manufacturers like 7 for All Mankind and True Religion that cost more than six times what Levi's charged. Levi's did not produce a premium denim line, Capital E, until just last year.


"The emergence of all this denim sold at astronomical prices simply passed them by," said David Wolfe, creative director of the Doneger Group, a fashion consulting firm in Back to the top Manhattan. "They should have jumped on the bandwagon but they did not even seem to see the bandwagon rolling, which amazed everyone in the fashion industry."


The denim manufacturers who recognized the trend openly concede that Levi's has served as an inspiration, if not template, for their products.

"Everyone is borrowing from them, it's inevitable, " said Michael Silver, the founder of Silver Jeans, who has had several legal run-ins with Levi's. "They should be happy that people are copying them," he said. But Levi's is not flattered. "The value of the brand will become diluted if the marketplace becomes crowded with products with similar tabs or stitching to ours," said Thomas M. Onda, a global intellectual property lawyer for Levi's. So employees at Levi's keep walking into stores and scanning the racks for rivals who dare to stray to close its trademarks, as Steven Shaul, the founder and chief executive of Jelessy Jeans learned when he slapped several intersecting arcs on a back pocket. At the time, Shaul, who loves Levi's and wears its jeans all the time, was confident his design bore no resemblance to the Levi's trademark. "It was not even close," said Shaul, whose jeans sell for between $200 and $400 a pair. "It was an original design," he said. "Why would I use Levi's stitching? If my jeans sell for $200, I would not knock off $40 jeans from Levi's. "Nevertheless, Levi's sued in 2005. "The first night after I was sued by them I couldn't sleep," he said. "The second night, no sleep again. Then I started talking to people in the industry and I realized, hey, everyone's been sued by Levi." Relieved, he quickly settled the case, agreeing not to sell jeans with the offending stitches. "I did not even hire a lawyer," he said.

Story Courtesy: International Herald Tribune Business - by Michael Barbaro and Julie Creswell




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April 05, 2007 626 VIEWS