This article discusses trademark protection in Nigeria. It defines a trademark and how a trademark application is made in Nigeria. It also highlights matters that can't be trademarked and discusses trademark infringement.
The relevant Legislation for Trade Mark is the Trade Marks Act cap t13 LFN, 2004. The trademark office in Nigeria is at the Federal Capital Territory, Abuja. The office is controlled by a registrar appointed by the Federal Civil Service Commission.
The registrar maintains the trademark records, the record has the name and address of the proprietors and the application date for registration. The powers conferred on the registrar under Section 45 of The Act permit him to regulate the practice, classify goods, etc.
What is a trademark?
A Trademark is a type of intellectual property right in Nigeria. According to section 1 of the Trade Marks Act, a trademark means any sign capable of distinguishing particular goods or services from other goods or services.
An example of a trademark is a recognizable logo or design that identifies a particular product.
In the case of Ferodo LTD & Anor v Ibeto Industries Ltd (2004) (2004) LPELR-1275 (SC) the Supreme Court of Nigeria described a trademark as what indicates a connection when trading the goods with some person having the right to use the same. A mark was defined to include a device, brand, heading, label, ticket, name, signature, word, letter, numeral, or any combination.
A trademark is registered under particular goods or classes of goods.
How to register a trademark in Nigeria
Pursuant to section 18 of the Trade Marks Act, a person who wants to be a proprietor of a trademark will apply in writing to the registrar in the required manner for either Part A or Part B of the register. The registrar can refuse or decide to modify a trademark.
An application for a trademark doesn't automatically confer trademark rights on the applicant, the trademark has to be registered first. In the case of DykTrade LTD v. Omnia (NIG) LTD (2000) (2000) LPELR-977 (SC) the supreme court held that a mere application doesn't confer trademark rights on a person.
Matters that cannot be registered as trademarks in Nigeria
• Deceptive or scandalous matterTrade Marks Act capt13 LFN, 2004 S (11)
• Names of chemical substances are commonly accepted as chemical elementsTrade Marks Act capt13 LFN, 2004 S (12).
• Trademarks identical with a trademark belonging to a different proprietor and which is already on the register in respect of the same goods or description of goods, or that so nearly resembles such a trademark and is likely to deceive or cause confusion. Trade Marks Act capt13 LFN, 2004 S (13).
What constitutes trademark infringement in Nigeria
A trademark right is infringed when an unauthorized person without consent from the trademark owner uses the trademark and misleads the public.
The rights conferred by a trademark registration include exclusive use of the trademark and the right to sue for trademark infringement.
Trademark proceedings in Nigeria
By virtue of section 3 of the Trade Marks Act, a person cannot institute a proceeding to prevent or recover damages for a trademark infringement if the trademark isn't registered. However, an action may still be instituted against any person for 'passing off' goods as the goods of another person.
The registrar is granted a duty by section 46 of the Trade Marks Act, to hear certain persons in a trademark infringement. By virtue of section 55 of the Trade Marks Act, a court reviewing the decision of the registrar by appeal has the same discretionary powers conferred upon the registrar by the Act and can exercise them.
Which court has jurisdiction for trademark proceedings in Nigeria?
The court with Jurisdiction for trademark proceedings in Nigeria is the Federal High Court. Order 2 of the Federal High Court Civil Procedure Rules provides that trials and suits for trademarks are commenced and determined in the judicial division where the defender resides or where the infringement took place.
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