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THE TRADEMARK PROTECTION IN NIGERIA

UNDERSTANDING THE TRADEMARK PROTECTION IN NIGERIA

 

TRADEMARK PROTECTION NIGERIA

Registering a trademark in Nigeria underscores the protection of the registered mark against any who would register an identical or similar mark or use the mark without the consent of the owner; it also connotes the protection, as it is a pre-requisite for the institution of infringement action under the Trade Mark Act where it has been illegally infringed upon.

Section 3 of the Trademark Act 1967 states that “no person shall be entitled to institute any proceedings to prevent or recover damages for an infringement of an unregistered trademark”. Going by this provision of the law cited, it can be inferred that for a proprietor to exercise a right over a trademark, it must be registered in respect of particular goods or services as provided under Section 4 of the Act.

A trademark, when registered in respect of particular goods or service, gives or is deemed to be given the exclusive right to use of the mark in respect to that goods, as provided under section 5 of the Act. And the right shall be deemed infringed by anyone 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 public.

Registering a Trademark in Nigeria is a bit long process and can vary for a period of eight months to a year and there are several stages involved in registering a trademark, with each stage having its timeline.

  • The first step is to authorize an agent or lawyer for the registration by issuing a Power Of Attorney authorizing such agent.
  • The next step is to fill an application to the Registrar who issues an Acknowledgment form that reflects the official number and date of application
  • A search is further conducted at the registry to check if the proposed mark and logo is identical to an existing mark. This takes a timeline of one week to conclude at the registry.
  • Between 2- 3 weeks from the date of application, the application will move to the verification where it will be reviewed and the Registrar will give a notice of Acceptance to the applicant where the Registrar finds the trademark acceptable. At this point, the trademark is deemed to have been duly registered.
  • Where the Proposed Trademark submitted infringes on another existing mark or does not have a distinctive feature, the Registry will issue a Notice of Refusal instead or Acceptance Notice
  • A trademark application is usually published in the Nigerian Trademark Journal for a period between 3-12 months depending on the backlog of the registry, which is open for any opposition likely to be raised by the general public. The publication is for any proprietor of an existing trademark to raise an opposition within 2 months where the registered mark is identical to its own.
  • The final stage, which is the issuance of Certificate, is dependent on when the trademark is published in the Journal and opposition is raised. Where no opposition is raised within the specific period, the registrar will issue the Applicant with a Certificate of Registration within a period of 3 months after publication.
  • The Certificate of Registration grants the owner exclusive right of use of the trademark and it has the initial validity of seven (7) years and subsequent renewal for 14 years. There is no limitation as to the number of renewal that can be done on a mark. The renewal should be done 3 months before the expiration of the existing trademark.

 

In registering a trademark, it is advisable to register a Logo or Device as called to be associated with the mark, especially where the trademark is used for commercial goods or services, to distinguish its elements from other existing products in the marketplace. A trademarked logo is a physical mark which can be a word, sign, symbol or design that identifies the trademark owner.

A trademark Logo can be represented in Black and white or in Colored pictorial form depending on the Applicants desire. It is, however, advisable to register a trademark in black and white as it protects the proprietor from any infringing logo that is represented in any colour; also where it is registered in black and white it will be protected against all colours. Section 16 of the Trademark Act states that “a trademark may be limited in whole or part to one or more specific colours” and a trademark registered without limitation of colour shall be taken to be registered for all colours.

 

The underlying purpose of Trademark names to be registered is to ensure that no trademark is used that might likely deceive or cause confusion or even mislead members of the public as to the distinctiveness between two separate trading entities. Registering a trademark also protects a business brands identity in the commercial marketplace. An investor’s trademark is infringed where another company brand elements are similar enough to confuse consumers.

To receive legal protection, the trademark must be distinctive and affixed to a product, registered in a particular class at the Trademark Registry for an initial period of 7 years from the date of application for submission and subsequently and constantly be renewed.

In conclusion, it is also advisable to register a logo for your brand products or service in black and white, for where it is registered in a particular colour the protection granted will be limited to that colour, and does not protect a subsequent registration by another proprietor in a different colour, but where it is registered in black and white it affords protection to all colours of presentation of the trademark and also it is deemed by the Registry to be registered in all colours.

 

By the Trademark & Intellectual Property Law Department at Resolution Law Firm Nigeria

 

 

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