Does Sabinus have a case against the companies using his trademark slang and image? [Pulse Explainer]

Peak milk owned by Friesland Foods Wamco Nigeria Plc used the phrase in a post on Instagram and he is suing them for One Billion naira.

Gala, a sausage making company owned by UAC foods, also used a cartoon image of his and he is suing them for N100 million.

According to the United States Trademarks and Patent office, “almost anything can be a trademark if it indicates the source of your goods and services. It could be a word, slogan, design, or combination of these. It could even be a sound, a scent, or a colour.”

Nigeria has a similar provision in its Trademarks law. The Act defines a mark as including a device, brand, heading, label, ticket, name, signature, word, letter, numeral, or any combination thereof.

So many brands have their trademarks. Coca-cola’s script, blank square, bottle and name are trademarked.

KFC trademarked “It’s finger-lickin’ good!”; Nike’s, “Just do it!” and their swishing logo are trademarks.

So, it is possible to trademark phrases and symbols. However, it has been argued that since, it does not relate to good and services it cannot be trademarked.

Does Sabinus have a case against them?

Well, it is a civil wrong committed against him, and he has every right to sue. The court will make a determination based on the facts.

Also, the fact that he trademarked it showed that he believes his brand and image have commercial value.

Does Peak milk and Gala have any fault or defence?

It was a harmless decision made by the content or marketing team of the company; but, how were they to know it was trademarked?

Well, that is where due diligence comes into play. Ignorance of the law is no excuse.

Secondly, it is a popular phrase. It is true that some pop culture phrases has no creator for instance, ‘japa’ or ‘breakfast’ but a phrase like ‘e choke’ clearly came from someone – Davido, and it may or may not be trademarked. Generic or descriptive phrases however cannot be trademarked.

Creatives for ad agencies should use their indigeneity to come up with catchy one-liners and not rely on trendy topics and images – without permission.

If they must post, a repost is better than creating similar content without proper credit.

The defence of the phrase not be related to any goods or services might be raised. Section 4 of the Trademarks law states: “A trade mark must be registered in respect of particular goods or classes of goods, and any question arising as to the class within which any goods fall shall be determined by the Registrar, whose decision shall be final.”

What can Gala and Peak milk do?

Negotiate or mediate with Sabinus. Whatever they do, they must not let the matter get to court – it might be a waste of everyone’s time and resources.