SABINUS VS MAKERS OF GALA AND PEAK MILK – WHY HIS CASE MAY FAIL

Award-winning Nigerian comedian, skit-maker and content creator, Chukwuemeka Emmanuel, popularly known as Sabinus, has threatened legal action against UAC Food Ltd (makers of Gala sausage) for allegedly violating his image rights. In a similar fashion, Sabinus has also proceeded against FrieslandCampina WAMCO Nigeria Plc (makers of Peak Milk) for allegedly violating his trademark by using the phrase something hooge which is associated with him in their advert placement. 

Image Rights Violation

Being a popular celebrity, Sabinus can easily lay more compelling legal claims over any unauthorised use of his image especially for business advertisement and commercial purposes. This is notwithstanding that there are no laws squarely dealing on image rights in Nigeria. The cause of action may be validly pigeonholed under interrelated areas of law covering individual’s fundamental right to privacy, data protection and intellectual property. 

In general, the law is that unauthorised use of a person’s image tantamount to image rights violation. Consequently, the violator may be held liable to pay compensation to the image owner in terms of damages. The law recognises that images of individuals deserve legal protection from unauthorised use. Celebrities like Sabinus are part of the most beneficiaries of image rights protection because of the influence they command. This accounts for the reason they often stand as brand ambassadors for corporations in juicy deals.

SABINUS VS MAKERS OF GALA AND PEAK MILK – WHY HIS CASE MAY FAIL

Where the image in question is the exact image of the claimant, there is usually less difficulty in advancing the case of violation or unauthorised use. However, a close look at the image used by UAC for the Gala advert shows a significant difference which supports the argument of dissimilarity in essential features. In other words, it seems there is no substantial similarity. Furthermore, there is nothing to fully support the contention that, based on an objective test, every person who views the UAC cartoon image (majorly laced in red) would automatically think it was Sabinus (with real image mainly laced in blue and black). As a matter of fact, Sabinus is still an upcoming comedian and skit-maker with growing popularity.

Trademark of “something hooge”

The case of Sabinus against FrieslandCampina is that the company allegedly exploited his catchy phrase “something hooge” for sales purposes.

SABINUS VS MAKERS OF GALA AND PEAK MILK – WHY HIS CASE MAY FAIL

Trademark remains a kind of intellectual property which could be in the form of a sign, design, or expression associated with certain products or services belonging to a person – individual or entity.

A cursory look at the Acceptance Letter from the Trademark’s Office shows that Sabinus had applied for trademarks registration of something hooge under Class 36.

It is however arguable whether Class 36 is the appropriate class to support the claims. It is not clear whether something hooge was registered under other relevant classes touching on education and entertainment.

Beyond this, the Acceptance Letter shown is only a prima facie proof of the application for registration and not a conclusive proof so as to bestow the protection of all legal rights on Sabinus at this point. As at date, there is no valid registration of something hooge as a trademark in favour of Sabinus or his corporate brand.

More so, it is questionable whether Sabinus has any right to trademark the phrase “something hooge”. The phrase was derived from “something huge”. The most important part of the phrase, “hooge”, came from stressing “Huge” in pronunciation. As a comedian simpliciter, there is nothing compelling in the use of the expression to bestow on Sabinus trademark rights over the expression.

Horrendous Claims

It is important to mention that the court is not a Father Christmas who goes about bearing gifts and giving freely to all and sundry. A look at the amount being claimed by Sabinus, as contained in the letter by his Solicitors, Stanley Alieke & Co., for the alleged violation of his image rights and trademarks shows that the talented skit-maker appears to be eager to “cash out big”. A claim that 100 Million Naira is the average fee Sabinus charges for the use of his image may need to be proved by cogent and verifiable evidence in order to justify the claim. Even at that, the court still has the discretion to refuse to be moved by that parameter. 

Meanwhile, the 1 Billion Naira claim against the makers of Peak Milk is incredibly high. In the latter claim, the 1 Billion Naira was broken down as follows – 500 Million Naira for alleged trademarks violation and 500 Million Naira for the alleged trauma suffered by Sabinus on learning of the alleged intellectual property theft.

Generally, the idea of awarding damages as a way of compensation is not governed by the intention to unjustly enrich a claimant. Sabinus’ expectation of something huge from the alleged violations does not manifest in this form through the instrumentality of the courts.

Conclusion

The makers of Gala and Peak Milk have some business decisions to make while contemplating on the strength of their defence based on the foregoing arguments. Engaging a Law Firm which plays in the entertainment industry, with expertise in Intellectual Property Law and highly skilled in dispute resolution (including negotiation) is the way to go.



Stephen Azubuike
Author: Stephen Azubuike
Stephen is a lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies and multinationals. He has worked with a number of startup tech companies. He tweets @siazubuike.
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