ESSENCE OF TRADEMARK REGISTRATION IN NIGERIA
The trademark registration in Nigeria has various importance. A trademark is a recognizable word or words, phrase, logo, symbol, signs or expressions registered at the Trademark Registry to represent or identify a company, products, or services to distinguish its brand from others in the commercial market, hence, it is of grave importance to register a trademark timeously to prevent a third party from infringing on the mark.
Section 9 of the Trade Marks Act, which governs trademark in Nigeria makes the provision of what can be accepted for registration as a trademark, and these include;
- A name of a company, individual, or firm represented in a particular or special manner
- The signature of the applicant for registration
- An invented word or words
- A word or words having no direct reference to the character or quality of goods not being in its ordinary specification a geographical name or surname
- Any other distinctive mark.
The Advantage of Trademark Registration in Nigeria
- The exclusivity of right– A trademark when registered in respect of particular goods or service grants the exclusive right to use of the mark in respect to that goods or services to distinguish one’s brand from that of other brands in the commercial market, and the exclusive right shall be deemed infringed by a third party not being the proprietor using it without the permission of the owner or uses a mark so resembling as is likely to deceive or cause confusion in the minds of the general public.
This exclusive right enjoyed by the proprietor of a trademark is guaranteed under the provision of Section 5 of the Act which provides that “Subject to the provisions of this section, the registration (whether before or after the commencement of this Act) of a person in Part A of the register as proprietor of a trademark (other than a certification trade mark) in respect of any goods shall if valid, give or be deemed to have given to that person the exclusive right to the use of that trademark in relation to those goods”.
The above section of the law also goes further to state what constitutes an infringement of a trademark registered and provides that “Without prejudice to the generality of the right to the use of a trademark given by such registration as aforesaid, that right shall be deemed to be infringed by any person who, not being the proprietor of the trademark or a registered user thereof using it by way of the permitted use, uses a mark identical with it or so nearly resembling it as to be likely to deceive or cause confusion, in the course of trade, in relation to any goods in respect of which it is registered, and in such manner as to render the use of the mark likely to be taken either –
a) as being used as a trademark; or
b) in a case in which the trademark is used upon the goods or in physical relation thereto or in an advertising circular or other advertisement issued to the public, as importing a reference to some person having the right either as proprietor or as a registered user to use the trade mark or to goods with which such a person as aforesaid is connected in the course of trade.
- Protection against Infringement of Intellectual Property– the essence of trademark and the Trademark Act is to protect the intellectual property of individuals, business owners, and corporate bodies. Registration of the trademark serves as a pre-requisite requirement for the institution of infringement action under the Trademark Act where it has been illegally infringed upon by a third party. In relation to where the mark registered to give distinctiveness to other product or services in the commercial market and it is illegally infringed on without the consent of the owner, Section 3 of the Trademark Act 1967 provides that “no person shall be entitled to institute any proceedings to prevent or recover damages for an infringement of an unregistered trademark”. Considering the impact of section 3 of the Act cited, it can be inferred that for a proprietor to exercise a right over a trademark, and commence legal proceedings for an infringement action, it must be duly registered in respect of particular goods or services.
- The uniqueness of Product– the essence of a trademark is to distinguish one’s unique marketing tool from another. The registration can be for a business logo, recognized symbol, color pattern, name, and others to make it easily recognizable and relatable to a brand.
- Assignment and Transfer of Trademark- upon the registration of a trademark one has exclusive rights over it. Another importance of the trademark registered is that like any other valuable asset one has, the ownership of the trademark can be assigned and transferred to another individual, business owner, or corporate entity to generate additional revenue, especially where the trademark is widely popular and has gained the goodwill of the public. The assignment of the trademark can be in respect of the business in total or the particular goods and services covered by that trademark as provided under Section 26 of the Act.
The purpose of registering a trademark is to ensure that no trademark is used that might likely deceive or cause confusion or even mislead members of the general public as to the distinctiveness between two separate trading entities. Registering a trademark also protects a business brand’s identity in the commercial marketplace. A trademark is infringed where another company’s brand elements are similar enough to confuse consumers.
The importance and essence of a trademark in Nigeria cannot be overemphasized, as it sets one’s product and services apart from others and it also guarantees and secures the product from any infringing action. Therefore, it is advisable to go the extra mile of registering one’s unique products and services with the Trademarks Registry after incorporating a company with the Corporate Affairs Commission.
By Intellectual Property Law Team at Resolution Law Firm