Nigeria: trade marks in Africa – your questions answered
Trade mark activity is growing rapidly in Africa, both as regards protection and enforcement. Yet there is still a great deal of uncertainty. This is the next in our series of country-specific updates. Here we focus on Nigeria.
Nigeria has a population of some 186 million, making it Africa’s most populous country – the population is, in fact, increasing so rapidly that Nigeria is set to overtake the USA as the world’s third most populous country by 2050. With a GDP of US$406 billion, Nigeria has the largest economy in Africa, and the 21st largest economy in the world. Although oil does play a significant role, the Nigerian economy is multi-faceted and comprises, inter alia, the manufacturing, financial, services, technology and entertainment sectors. Like many African countries, Nigeria has serious problems with counterfeit goods.
A consideration peculiar to Nigeria is that there is a government agency called the National Agency for Food and Drug Administration and Control (NAFDAC). The purpose of this body is to protect public health and safety, particularly in the areas of food, drugs, medical devices, cosmetics, chemicals, pesticides, veterinary products, agrochemicals and herbal preparations. Companies that operate in these product areas need to register with NAFDAC before they can sell their products in Nigeria, and in order to get a NAFDAC registration it is necessary to have either a Nigerian trade mark application that has been accepted or a registration.
Any person claiming to be the proprietor and who uses or proposes to use a trade mark can validly file an application for registration.
The legislation, the Trade Marks Act, Cap 436 (1990), provides for the registration of trade marks (which includes service marks), series marks, certification marks and defensive marks.
The Register is divided into Parts A and B, with Part A being for marks that are adapted to distinguishing, and Part B for marks that are capable of distinguishing. Registration in Part A can be granted for the name of a company, a signature, an invented word, a word having no direct reference to the goods, or any other distinctive mark. A Part A registration achieves a certain degree of incontestability after seven years.
It is not possible to register a mark that is confusingly similar to a registered trade mark covering the same goods or services, except in the case of honest concurrent use. It is also not possible to register a mark that is disentitled to protection in a court of law, scandalous, or contrary to law or morality.
The owner of a registration can stop use of the same mark or a confusingly similar mark in relation to goods or services covered by the registration. Prior use is a defence, as is the use of one’s own name, the name of the business, or a genuine description of the goods or the character or quality of the goods.
Priority claims are possible, the International Classification system applies, multi-class filing is not possible, and a Power of Attorney (notarised) is required. Online filing is possible and there is examination. An applicant can be required to enter disclaimers and agree to association. If an application is accepted there is advertisement and opposition is possible.
The registration term is seven years followed by renewal terms of 14 years. The non-use term is five years. Use by a recorded licensee will suffice.