Business Regulations, Law & Practice | |
Business Regulations, Law & Practice | |
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Thursday, August 27, 2020 02:00PM /
Aelex / Header Image Credit: Aelex
Introduction
In a judgment
delivered on 25 March 2020 in Musical Copyright Society Nigeria (Ltd/Gte)
v. Copyright Society of Nigeria (Ltd/Gte) & 2 Ors1, the Lagos Division of the Federal High Court
("the Court") held, inter alia, that:
Background Facts
On 4 October 2009,
the Plaintiff applied to the 2nd Defendant to reserve the name 'Copyright Society of Nigeria' for registration, and the said name was approved
by the 2nd Defendant. The name was reserved for 60 days, with the
reservation set to expire on 4 December 2009.
Thereafter, the
Plaintiff decided to add 'Ltd/Gte' to the name and submitted another
application for availability and reservation of the new name, attaching the
earlier approved availability/reservation certificate in respect of 'Copyright
Society of Nigeria'. However, the 2nd Defendant refused reservation
of the new name and advised the Plaintiff to apply under Part C of the
Companies and Allied Matters Act ("CAMA") for the registration of the entity.
The Plaintiff then decided to revert to registering an entity with the name 'Copyright Society of Nigeria' instead of applying for a new name under Part C
of CAMA.
However, due to the
absence of some of the Plaintiff's trustees who were unavailable to append
their signatures to the registration forms, their solicitors were unable to
file the registration documents before the expiration of the reservation period
on 4 December 2009. The name reservation for 'Copyright Society of Nigeria' in
favour of the Plaintiff, therefore, expired on 4 December 2009.
Thereafter, the Plaintiff, through its solicitors, went for re-validation of the name. However, they were told that they could not re-validate the name because the 2nd Defendant had approved 'Copyright Society of Nigeria Ltd/Gte' in favour of the Performing and Mechanical Rights Society of Nigeria ("PMRS/the 1st Defendant") who intended to change its name from PMRS. The approval was reported granted on 23 November 2009, which was still within the reservation period for the name 'Copyright Society of Nigeria' granted in favour of the Plaintiff. The change of name and registration of PMRS' new name was effected on 9 December 2009.
The Plaintiff's Position
The Plaintiff
submitted that by the Regulations of the 2nd Defendant, an applicant
is allowed to reserve a name for registration over a period of 60 days. During
that period, no other applicant is allowed to use the name. The Plaintiff
stated that it had reserved the name 'Copyright Society of Nigeria' for 60 days
from 4 October 2009 to 4 December 2009.
Therefore, the 2nd
Defendant had violated its own Regulations by permitting a change of name from
PMRS to the 'Copyright Society of Nigeria Ltd/Gte' at a time that the Plaintiff
had duly reserved the name. This is more so because there were pending
petitions with the 2nd Defendant and the 3rd Defendant
(the Attorney-General of the Federation) dated 13 November 2009 against the use
of the name 'Copyright Society of Nigeria'.
The Plaintiff also
submitted that there is evidence that it attempted to register the name 'Copyright Society of Nigeria Ltd/Gte' as far back as 1984, but was refused by
the 2nd Defendant on the ground that the name was too broad and generic
to be incorporated by a private or sectional organisation. As such, it would be
a violation of Section 42 of the 1999 Constitution for the 2nd
Defendant to permit the change of name from the defunct PMRS to the name 'Copyright Society of Nigeria Ltd/Gte'.
The Plaintiff
further submitted that an organisation whose genre of copyright is restricted
to musical rights ought not to be permitted to use the name 'Copyright Society
of Nigeria', being a term encompassing rights arising from literature, arts,
music, drama, cinematography, broadcast, architecture, computer programmes, and
so on.
The Plaintiff also
argued that changing the name of PMRS to 'Copyright Society of Nigeria Ltd/Gte' amounts to merely dropping the word 'musical' from the Plaintiff's name
(Musical Copyright Society Nigeria (Ltd/Gte), which can be considered as
passing off and is capable of causing confusion with the Plaintiff's identity.
On the whole, the Plaintiff urged the Court to hold that the approval and subsequent registration of 'Copyright Society of Nigeria Ltd/Gte' in favour of the 1st Defendant was unlawful, and make orders to reverse the unlawful acts.
The 1st Defendant's
Position
The 1st
Defendant contended that, by the Plaintiff's own admission, the Plaintiff's
name reservation expired on 4 December 2009. The 1st Defendant also
argued that the Plaintiff was only trying to mislead the Court when it said
that it was informed that the 1st Defendant's name was approved on
the 23 November 2009 when the Plaintiff's reserved name was valid and
subsisting. The 1st Defendant submitted that it was registered as
Copyright Society of Nigeria Ltd/Gte on the 9 December 2009, as opposed to 23
November 2009 and that by 9 December 2019, the Plaintiff's name reservation had
expired. The 1st Defendant was, therefore, registered five (5) days
after this reservation expired. Thus, the Plaintiff's purported application to
revalidate the expired reservation as contained in its letter to the 2nd
Defendant, dated 22 December 2009, was after the registration of the 1st
Defendant.
The 1st
Defendant further submitted that the discretion of deciding whether a name to
be registered offends an existing name on the Register of the 2nd
Defendant is a discretion to be exercised solely by the 2nd
Defendant and the Court does not have the jurisdiction to interfere into such
exercise.
On the whole, the 1st Defendant asked the Court to dismiss the Plaintiff's case.
The Judgment
In its judgment,
the Court ruled as follows:
a) it is clear from the submissions of parties and the documentary
evidence before the Court, that the 2nd Defendant approved the name 'Copyright Society of Nigeria' in favour of the Plaintiff to last for 60 days,
between 4 October 2009 and 4 December 2009. Consequently, it was only after 4
December 2009 that the name would cease to be reserved for the Plaintiff.
Also, according to the provisions of Section 32 (2) of the Companies and Allied
Matters Act Chapter C20, Laws of the Federation of Nigeria 2004 (CAMA), no
other name which, in the opinion of the CAC, bears too close a resemblance to
the reserved name shall be registered for the period of reservation.
It is therefore a misnomer to give the name which the Plaintiff has
applied to register, or similar to what the Plaintiff seeks to register, to the
1st Defendant on 23 November 2009 when the time allowed for the
Plaintiff to complete their registration had not expired.
b) The Court stated that even though CAMA confers the discretionary right
to reject or accept a name on the CAC, the Court has the powers to intervene
when such discretionary powers are not properly exercised.
c) The Court raised the question 'are the names "Copyright Society of
Nigeria" and "Copyright Society of Nigeria Ltd/Gte" not similar and capable of
misleading the public as expressed in the opinion of the 2nd
Defendant?'. The Court answered the question in the positive, and held that the
two names are similar and that the 2nd Defendant ought not to have
approved 'Copyright Society of Nigeria Ltd/Gte' for the 1st
Defendant while the reservation of 'Copyright Society of Nigeria' for the
Plaintiff had not elapsed.
The Court further stated that the issue of
whether the Plaintiff's present name is similar to that of the 1st
Defendant is of no moment because the 1st Defendant's present name
was illegally approved.
d) The Court accepted the Plaintiff's argument that an organisation whose
genre of copyright is restricted to musical rights could not legally be
permitted to use the name 'Copyright Society of Nigeria', being a term
encompassing rights arising from literature, arts, music, drama,
cinematography, broadcast, architecture, computer programmes, and so on.
The Court,
therefore, declared the approval and registration in favour of the 1st
Defendant unlawful, gave injunctive orders against the Defendants on the use of
the 'Copyright Society of Nigeria' name, and made an order directing the 2nd
and 3rd Defendants to take necessary steps to rescind the 1st
Defendant's name change and registration as 'Copyright Society of Nigeria
Ltd/Gte'.
Takeaway
The takeaway from the Court's
decision is that courts will not hesitate to invoke their supervisory powers
over regulatory agencies and other administrative bodies who may have
discretionary administrative powers, where it appears that such discretionary
powers have not been exercised lawfully or properly.
In the present matter, although the
CAC had purportedly exercised its discretion under section 32(2) of the CAMA2, the Court
invoked its supervisory powers, especially in light of the Court’s exclusive
constitutional powers to entertain all civil causes and matters arising from
the operation of the CAMA3.
Conclusion
The discretionary
powers given to administrative bodies are not boundless and should be exercised
within the confines of the relevant legal frameworks. Where there is a
departure from the letters of the law, the courts are able to investigate and
review such exercise of discretion. As such, the administrative bodies should
refrain from inconsistent application of laws and regulations, which are
indicators of arbitrariness.
Footnotes
1. Suit No.:
FHC/L/CS/274/2010
2. 32(2) of CAMA provides that- Such reservation as
it is mentioned in subsection (1) of this section shall be for such period as
the commission shall think fit not exceeding 60 days and during the period of
reservation no other company shall be registered under the reserved name or
under any other name which in the opinion of the commission bears too close a
resemblance to the reserved name.
3. Section 251 (1) (e) of the
Constitution of the Federal Republic of Nigeria, 1999
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