Business, Legal Drama

Chidinma ‘Kedike’ the Singer v. Chidynma ‘Obimmo’ the Singer – Who Should Change Names? #Nigerian Trademark Laws #Trademark Infringement

Chidinma just released a couple of singles  and all I could think of was that while she is talented, her name needs to be changed. Artists and labels we gotta rein this thing in, seriously. Labels, you need to be doing your trademarks and due diligence checks on the artists you sign. Artists, the same applies. It doesn’t matter if you are an artist who won Project Fame, Nigerian Idol or what have you. If there is already another popular artist with the same name, also pronounced the same way, in the same country and musical genre, something’s gotta give. Someone has to change his/her name.

Also, clearly, Nigeria’s intellectual property laws, especially in terms of enforcement, has a long way to go although strides are being made. But, blogs, google and the internet in general have made it easy to find out who out there is already using a name so you avoid doing the same. The Trademark Infringement is not only obvious when we discuss Nollywood vs. Hollywood films i.e. Beyonce v. Beyonce (Nollywood) or Lady Gaga v. Lady Gaga (Nollywood). It is also present in music and it is too expensive for existing artists to have to turn their whole world upside down every time a newcomer comes into the picture. This is where it would be nice if existing artists register their trademarks so they can sue to stop infringers.

Also, I am noticing this issue is more prevalent among our female singers. Ladies, what’s the issue? Label owners managing these ladies, what’s the issue? The industry is dominated with men.The few women making entrance into the industry should not be shooting themselves in the foot before they even start.

Last time, I talked about Eva the rapper v. Eva the singer trademark infringement.

Within that article, I discussed Nayo the singer #1 vs. Nayo the Singer #2 trademark infringements. Nayo the Singer #2 who came later in the game changed her name because Nayo Singer #1 had a registered trademark.

Now, we have Chidynma the singer v. Chidinma the singer (Project Fame West Africa Winner). Chidynma the singer #1 from my understanding came before Chidinma the singer #2.  Chidynma began her career, professionally, in 2008, but things really picked up for her in 2010. For Chidinma #2, she won the Project Fame West Africa competition in 2010 and about September 2010 had all newspapers etc. creating buzz for her.

Who then should change names? #1 or #2? Read previous article on Eva v. Eva.

How is an artist suppose to earn a living if after they establish a name, someone comes into the marketplace and just shows up with exact or almost exact name in the same industry and same genre? Can you imagine another Beyonce, regardless if Beyonce #2 won American Idol? What about another Jay-z,  Lil’ Wayne? Kanye West? Everyone will be confused. It is not any different because we are dealing with Nigerian names in Nigeria.

If another person who is fondly called M.I enters a competition and wins, should that new artist brand his name as M.I? The obvious answer has to be “NO!” The New M.I can add his last name to show a clear distinction from the current M.I.

Again, Nigeria’s music industry needs to rein this in and start thinking these issues through from a business and legal standpoint.

Chidinma #2

Now let’s check out the law.

What is a Trademark in Nigeria, how do you define it? How do you register it?

Read Nigeria’s Trademark Law statutes here. Note that Nigerian trademark statute also applies the “confusion” test similar to America’s below. Most of Nigerian law is copied from England’s so there is a high probability Nigeria’s intellectual property laws are even more closely aligned with the UK’s.

For a breakdown and registration process  of Nigeria’s Trademark Laws click here.

You still need to get a lawyer there in Nigeria to help you with trademark registration. The above is just information which may or may not be current.

If you are a Nigerian artist in the USA or seek to do business in the USA as in the D’Banj GOOD Music scenario, below are the basics you need to know about Trademark law. This applies to artist, designers, film makers etc.

What is a Trademark (TM) ™?
It is any word, phrase, logo symbol, color or sound that is used by a company to identify products or services in the marketplace. TM can be your business name that you use to sell your product and services as well as your product or service name.

What is a Service mark?

It’s the mark you use to market your service. It’s used interchangeably to mean TM.

How do you create a TM?
Just use your trade name, i.e. the name you use to the public, to identify your products or services for sale. So for example, G Unit, Rocca Wear, Ladybrille, Target,  Essence, Vogue, you get the drift.

Do I have to register my TM?
No. There is no registration requirement. HOWEVER, it enhances your rights when you seek enforcement against an infringer. Also, if you are the first to use your TM, then you can stop others from subsequently using your mark, a.k.a. “infringe on your trademark.”

How Do I Register my TM?
File or complete application with the US Patent and Trademark Office. You can also hire an attorney to do it for you.

What If I intend to Use it but I am not Ready?
No big deal. All you have to do is file an intent to use [ITU] TM registration application with the US Patent and Trademark Office. You’ll need to file another application once it is in actual use and of course pay applicable fees.

Are there instances where I own my TM but I am unable to prevent others from using it?
Yes.

WHY?
Because TM gives varying degrees of protection to TM owner, depending on the situation.

How Do I get Maximum TM protection for my brand?
The question you must answer is whether your mark qualifies for TM protection? If yes, how much?

Here is the breakdown/analysis:

  • Is your mark a strong or weak mark? Distinctive business names receive the strongest legal trademark protection. For example. Gucci, GAP. They make strong connections in the minds of customers and play a big role in their buying choices. The more distinctive a name, the more likely it is that customers will be less confused by more than one business using the name.
  • What if my name is Ordinary? The law says ordinary and descriptive names receive less or no protection. Why? Because they are weak!

What are examples of weak TM names?

  • Ordinary or descriptive words
  • Personal names. NOTE: Personal names with use can become stronger e.g. Marc Jacobs.

What are examples of strong distinctive TM?
They are marks that clearly separate the products or services they represent from others. For example, GAP =clothes

How can I make my weak TM grow stronger?
Keep using it.

To be clear, could you list instances where I cannot register or receive TM protection

  • Non-use or abandonment: After 3yrs its presumed abandoned!
  • Generics & genericide: The word “Fashion” is generic but there are many brands Gucci, Prada, Miu, Miu. Why not grant TM to “fashion?” If protection is granted to “fashion” one company would have a monopoly and could stop all others from using the name of the goods.
  • Confusingly similar marks: The “Likelihood of confusion,” prevents you from registration and claim of TM.
  • Weak mark
  • descriptive
  • geographic
  • marks that are primarily surnames

Do I need a TM notice?
No. It is common for you to see “TM” when word, logo, symbol or phrase is being TM or application has not been filed. Upon completion, registration and actual issuance, then the mark now carries the ® symbol.

Do I need to register my TM to enforce my rights in court?
No.

How do the courts determine consumer confusion?
The courts ask: are there similarities of the conflicting marks in appearance, sound, meaning? E.g. Red Threads Designs v Red Treds Designs.

  • Do the products or services actually conflict? Ford Modeling agency v Ford Motors. If not, then both can exist.
  • What is the strength of the mark?If it is strong, it stays in consumer’s mind. If weak and confuses consumers, you will still not receive TM protection.

Both awesomely talented women

Africa Music Law™

AFRICA MUSIC LAW™ (AML) is a pioneering music business and entertainment law website, livestream and podcast show empowering the African artist and Africa's rapidly evolving entertainment industry through its brilliant music business and entertainment law commentary and analysis, industry news, and exclusive interviews.

For general inquiries, advertising, licensing, or to appear on the show as a guest, please email ([email protected]). Thank you for visiting.

ABOUT THE FOUNDER

Credited for several firsts in the fashion and entertainment industry, Uduak Oduok (Ms. Uduak) is a fashion and entertainment lawyer, speaker, visionary, gamechanger, trailblazer, and recognized thought leader, for her work on Africa’s emerging global fashion and entertainment markets, and the niche practice of fashion law in the United States. She is also the founder of ‘Africa Music Law,’ an industry go-to music business and law blog and podcast show empowering African artists. Her work in the creative and legal industries has earned her numerous awards and recognitions, including an award from the American University Washington College of Law for her “legal impact in the field of intellectual property in Africa." She has also taught as an Adjunct Professor at several institutions in the United States. For more information, visit her at https://msuduak.com.

You may also like...