Intellectual Property Considerations in International Business Expansion

CONTRIBUTOR: OLUGBADE JOHNSON ABIOLA

INTRODUCTION

In today’s globalized economy, businesses are increasingly expanding their operations across borders. One of the most critical aspects of international business expansion is the protection and enforcement of Intellectual Property (IP) rights. Failing to address IP considerations can expose businesses to risks such as infringement, loss of competitive advantage, and legal disputes.

This article hopes to discuss the role of IP in Cross-Border Business Venture, Challenges in the enforcement of IP rights in Cross-Border Business and legal solutions for cross-border IP disputes.

ROLE OF IP IN CROSS-BORDER BUSINESS VENTURE

Intellectual Property (IP) encompasses all rights associated with intangible assets owned by a person or company and protected against use without consent and Intangible assets also refer to non-physical property, including rights of ownership in intellectual property^[1].

Hence, Intellectual Property (IP) encompasses various intangible assets, including patents, trademarks, copyrights, and trade secrets. These assets provide companies with a competitive edge by safeguarding their innovations, brands, and confidential information^[2].

In cross-border joint ventures, partners contribute their respective IP assets to the collaboration, playing a crucial role in the venture’s success. Therefore, it is essential to clearly define and categorize the IP assets involved and establish protocols for their use, ownership, transfer, and protection. This includes determining the ownership of jointly developed IP, setting guidelines for licensing or sublicensing arrangements, and addressing potential conflicts between different IP rights.^[3]

IP protection is vital in cross-border ventures, as it prevents unauthorized use and imitation of each party’s intangible assets while ensuring exclusive ownership and control. However, many businesses overlook the importance of protecting their IP rights when engaging with entities beyond their national borders, despite its necessity.

Some of the examples of Intellectual property include: Trademarks, Copyrights, Industrial Designs, and Patents.

1. Trademark

A trademark is any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods^[4]

This implies that a trademark helps consumers recognize a brand and prevents competitors from using similar marks that could confuse, hence protecting a company’s identity and reputation in the marketplace.

Protecting this right is essential in any cross-border business venture to prevent companies in different geographical regions from copying or imitating a brand without facing legal consequences.

Ashluxe (“Ash”) is an example of a successful cross-border venture. It is a Nigerian fashion brand in Nigeria with a unique trademark duly registered in the United Kingdom (the “UK”) and partners with international brands in the United Kingdom. If Ashluxe were not trademarked, it would be possible for any international brand that sees the mark to imitate or copy it and proceed to register the mark in the UK as their mark^[5]

Another example of a successful cross-border venture is Juicyway, a payment startup which uses stablecoin technology enables individuals and businesses to send, receive, and process payments globally through fiat and cryptocurrencies the firm has processed $1.3 billion across 25,000 transactions and 4,000 customers in Nigeria, Canada, the USA, and the UK.^[6]

Hence, if Ashluxe and Juicyway were not trademarked, any international brand that comes across the mark could imitate or copy it and legally register it as their trademark in the UK. Therefore, any company operating internationally must ensure that they do not meet the legal requirement for the company locally, but they must also do so internationally, which includes, but is not limited to, ensuring that their company is trademarked both locally and internationally.

1. Copyright

Copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings^[7]

Copyright is the legal right that gives creators control over their original works, such as books, music, movies, art, and software. It prevents others from copying, distributing, or using these works without permission. In simple terms, copyright protects creative expressions and ensures that the original creator gets credit and benefits from their work.

Therefore, for copyright in a work to be protected in all the countries in which it is republished or reproduced, each one of those countries must, by legislation, extend copyright protection to that work. Against this background, several international treaties require each State party to accord protection to authors who are nationals of all the other State parties on the same terms as they do to their nationals, a legal principle referred to as “national treatment”^[8]

1. Patent

A patent is an intellectual property right to protect inventions, granted by a country’s government as a territorial right for a limited period. Patent rights make it illegal for anyone except the owner or someone with the owner’s permission to make, use, import or sell the invention in the country where the patent was granted^[9].

In cross-border business ventures, patents often result from collaborative innovations.This is because the law duly recognizes co-inventors’ rights, allowing them to jointly file patent applications. Hence, each co-inventor holds an equal, undivided interest in the patent or application, meaning no single party can claim exclusive ownership, and unless otherwise stipulated in a prior agreement, every co-owner has the right to independently use or commercialize the patent for personal benefit.

CHALLENGES IN ENFORCEMENT OF IP RIGHTS IN CROSS-BORDER IP DISPUTES

Intellectual property (IP) enforcement is the act of taking legal action when IP rights, including trademarks, copyrights, industrial designs, patents, geographical indications – and trade secrets have been infringed, the objective being to stop the infringement, prevent further violations of IP rights and remedy the prejudice caused by these actions^[10].

Indeed, enforcing IP-related matters across jurisdictions presents significant challenges due to the independence of national legal systems. Each country operates under its own set of laws, and courts generally do not recognize foreign judgments as automatically binding. Nigerian courts, for instance, do not recognize judgments from foreign courts as automatically binding, instead, such judgments are treated as persuasive authority at best, requiring a separate enforcement process before they can be given legal effect within Nigeria.

This legal divergence therefore creates a major obstacle to enforcing cross-border IP protection judgments and rulings.

Hence, to secure IP rights in a foreign jurisdiction, a plaintiff may be required to initiate separate legal proceedings in that country’s courts. However, this process is often complex, time-consuming, and costly, adding to the difficulties of international IP enforcement.

LEGAL SOLUTIONS FOR CROSS-BORDER IP DISPUTES

As earlier highlighted, cross-border IP disputes can pose several challenges due to the differences in legal systems, cultural norms, and jurisdictional issues. Nonetheless, the following can help curb or reduce the rate of Cross-border IP-related disputes.

1. International Treaties and Agreements:

Establishing international treaties and agreements between Nigeria and other countries would significantly enhance the protection and enforcement of intellectual property (IP) rights. Such agreements would facilitate mutual recognition of IP rulings, streamline enforcement procedures, and promote cooperation in addressing cross-border IP disputes. This is because legal Solutions for Cross-border IP Disputes can be addressed through international treaties and agreements. These treaties and agreements provide a framework for resolving disputes between parties from different countries. They establish rules and procedures for the protection and enforcement of intellectual property rights across borders. Examples of such treaties include the Paris Convention for the Protection of Industrial Property, the Berne Convention for the Protection of Literary and Artistic Works, and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). These international agreements help to harmonise intellectual property laws and provide mechanisms for resolving disputes through international courts or arbitration^[11].

1. Alternative Dispute Resolution Methods:

Alternative dispute resolution methods can also be used to address cross-border IP disputes. These methods include mediation, arbitration, and negotiation. Mediation involves a neutral third party facilitating discussions between the parties to help them reach a mutually acceptable solution. Arbitration is a more formal process where a neutral arbitrator or panel of arbitrators makes a binding decision on the dispute. Negotiation involves direct discussions between the parties to reach a settlement without the involvement of a third party. These alternative dispute resolution methods can be faster, more cost-effective, and less adversarial than traditional litigation, making them attractive options for resolving cross-border IP disputes.^[12]

1. Drafting a Comprehensive Intellectual Property Agreement:

Having clear and well-defined agreements is essential in cross-border collaborations to ensure the effective management and protection of intellectual property (IP). These agreements should outline ownership rights, permitted usage, transfer conditions, and responsibilities related to both existing and newly developed IP. Additionally, incorporating strong confidentiality and non-disclosure provisions is vital to safeguarding sensitive information. For example, strategic partnerships in the tech and automotive industries often involve detailed IP-sharing frameworks, licensing agreements, and confidentiality measures to balance collaboration with competitive interests while minimizing legal disputes.

CONCLUSION

Intellectual property (IP) is no doubt a crucial asset in cross-border business ventures, serving as a foundation for innovation, collaboration, and competitive advantage. Effective recognition and enforcement of IP rights enable businesses to protect their intellectual creations, foster trust in partnerships, and ensure long-term success. By proactively understanding the legal frameworks governing IP protection across jurisdictions, businesses can minimize risks, capitalize on emerging opportunities, and strengthen their market position in an increasingly globalized and competitive economy.

REFERENCE

1. St. Francis School of Law “Intellectual Property Rights, Definition and Examples” available at: https://stfrancislaw.com/blog/intellectual-property-rights/ Accessed on: 25^th March 2025 ↑
2. G. Elias “ Intellectual Property Considerations in Cross Border Business Venture” Available at: https://www.gelias.com/images/IP_Considerations_In_Cross_Border_Business_Venture.pdf Accessed on 25th March 2025. ↑
3. Ibid ↑
4. Cornell Law School “Trade Mark” Available on: https://www.law.cornell.edu/wex/trademark Accessed on 25th March 2025 ↑
5. G. Elias “ Intellectual Property Considerations in Cross Border Business Venture” Available at: https://www.gelias.com/images/IP_Considerations_In_Cross_Border_Business_Venture.pdf Accessed on 25th March 2025. ↑
6. Chinwe Michael “Here are startups driving cross-border payment in Nigerian” Available at: https://businessday.ng/technology/article/here-are-startups-driving-cross-border-payments-in-nigeria/ Accessed on 25^th March 2025. ↑
7. World Intellectual Property Organization “Copy Right” Available at: https://www.wipo.int/en/web/copyright Accessed on 25th March 2025. ↑
8. Robert Brauneis, ‘National Treatment in Copyright and Related Rights: How Much Work Does it Do?’ (2013) GW Law Faculty Publications & Other Works 810 Available at: https://scholarship.law.gwu.edu/faculty_publications/810/ Accessed on 26th March 2025. ↑
9. University of Plymouth “What is a patent” Available at: https://www.plymouth.ac.uk/research/support/intellectual-property/intellectual-property-faqs/what-is-a-patent Accessed on 25th March 2025. ↑
10. World Intellectual Property Organization “Intellectual Property Enforcement” Available on: https://www.wipo.int/en/web/ip-enforcement Accessed on 26th March 2025. ↑
11. Michael Edwards “Key Challenges in Cross-Border IP Disputes and Legal Solution” Available at: https://michaeledwards.uk/key-challenges-in-cross-border-ip-disputes-and-legal-solutions/ Accessed on 26th March 2025. ↑
12. Ibid ↑