Nigeria: Bridging the gap between trademark and consumer protection

With demand for goods rising in Nigeria, trademark infringement is on the up. Izuchukwu Chinedo of Inventa explores how policy reforms can better protect both brand owners and consumers.

Trademarks are central to commercial identity, which enables consumers to distinguish goods and services from others, while protecting the owner’s economic benefit and goodwill. In the Nigerian economy, the level of competition has increased over the years as a result of a significant increase in demand for goods and services.

However, this increase has been accompanied by rising cases of trademark infringement, especially in the form of counterfeiting and cases of passing off, which impairs owners’ rights and misleads consumers, resulting in loss of profits and circulation of counterfeit products unfit for consumption and use.

The Trademark Act grants exclusive rights to owners of products, thereby preventing others from unauthorised use. A trademark owner is expected to protect their rights to reap the legal benefits therein, such as the right to sue for infringement. Consumer protection involves ensuring fair trade, product safety, and truthful representation of goods and services, safeguarding consumers against unfair practices in the marketplace.

This article seeks to examine the relationship between trademark protection and consumer protection, evaluate the adequacy of Nigeria’s current legal and enforcement framework, and propose policy reforms necessary to enhance the protection of both brand owners and consumers.

Legal and institutional framework for trademark protection in Nigeria

Nigeria is blessed with a multiplicity of laws, Acts, regulations and enactments regulating trademarks. Some of the laws include:

• Trademarks Act Cap T13 LFN 2004: This regulates trademark registration and protection in Nigeria.
• Trademark Regulation (Excluded from L.F.N. 2004).
• Federal Competition and Consumer Protection Act (FCCPA) 2018.
• Common Law action for Passing Off.
• Standards Organisation of Nigeria Act.
• National Agency for Food and Drug Administration and Control Act, etc.

The bodies and agencies governing trademark regimes in Nigeria include:

• Trademarks, Patents, and Design Registry: Set up as a department under the Ministry of Trade and Investment, and is responsible for the management of trademark, patent, and design applications in Nigeria.
• The Nigerian Customs: Charged with the interception and seizure of illegal and counterfeit products and border control.
• National Agency for Food and Drug Administration and Control.
• Standards Organisation of Nigeria.
• Federal High Court: Section 251(1) and (3) vests the Federal High Court with jurisdiction over matters relating to the enforcement of intellectual property rights in Nigeria.

Nature and prevalence of trademark infringement in Nigeria

Section 5(2) of the Trademark Act states that ‘without prejudice to the generality of the right to use a trademark, the marks shall be deemed to be infringed by any person who not being the proprietor of the trade mark, uses a mark identical to it or so nearly resembling it as it is likely to deceive or cause confusion in cause of trade in relation to any goods in respect of which it was registered.’

From the above, three elements have to be present for infringement to occur:

1. Use by any person not being the proprietor of a trade mark: In British American Tobacco (Nig.) Ltd & Anor v International Tobacco Company Ltd, (2003-2007) 5 IPLR p 285, 280, 272) it was held that an infringement of trademark would arise where a person, not being the owner or a registered user, makes use of a mark which is identical or closely resembles an existing trademark.

2. Use of an identical or closely resembling trade mark and likely to cause confusion: The likelihood of confusion is the central focus of any trademark infringement claim in Nigeria, and it exists when consumers view the mark as similar and that the product or service it represents is associated with the source of a different product or service.

The issue therefore, is whether the person who sees or has seen the proposed trademark will confuse it with the existing trademark as to create confusion and be deceived that the proposed trademark is the same as the existing one.

3. In relation to goods for which the mark is registered: The mark must be in relation to goods for which the mark is registered. For example, if the registered mark is for drugs and the infringing mark is for detergent, it would not amount to infringement under the law.

Consumer protection dimension

A consumer is a person to whom a service is rendered. A consumer can also be said to be someone who purchases or offers to purchase goods, other than for resale. In commercial transactions, the protection of consumers’ rights plays a vital role in fostering fair competition, ensuring economic growth, upholding ethical business practices, and the protection of the rights of consumers.

In Nigeria, the legal framework governing consumer rights is primarily encapsulated in the Federal Competition and Consumer Protection Act (FCCPA). Enacted in 2018, the FCCPA represents a landmark legislation that consolidates efforts to safeguard the interests of consumers, while fostering healthy competition in the market.

Rights of a consumer The Federal Competition and Consumer Protection Act makes provisions for the rights of a Consumer. Some of these rights are highlighted below:

• Right to Disclosure of Information
• Right to Disclosure of Reconditioned or Second-hand Goods
• Right to Choose or Examine Goods
• Right to Fair Dealing
• Right against Unfair, Unreasonable, or Unjust Contract Terms
• Right to Quality Service, Safe and Quality Goods

Trademark infringement severely harms consumers through:

• Health complications from fake drugs and consumables
• Loss of revenues
• Deception and confusion impacting purchasing decision
• Reduced trust in genuine brands and formal businesses

An affected consumer may pursue remedies for violations of their consumer rights through the following avenues:

• Directly contacting the service provider,
• Escalating the matter to the relevant industry regulator with jurisdiction over the service provider,
• Filing a formal complaint with the Commission.

It is important to note that an aggrieved consumer also has the option of approaching a competent court directly to seek redress, without first exhausting any of the mechanisms listed above.

Factors affecting effective enforcement of consumer rights in Nigeria (policy evaluation)

There are various challenges affecting the enforcement of consumer rights in Nigeria. They are, but not limited to, the following:

Archaic laws: Most of Nigeria’s Intellectual Property laws are old and not suitable for the rapid developments and modern-day settings. In most advanced countries where Nigeria took most of their legislative roots, several reforms have been carried out in their laws.

Lack of funds and adequate facilities: This causes a scarcity of technical tools for anti-piracy operations and the continuous use of obsolete equipment. This further hinders the commissions from effective operations, as there are no accessible funds caused by the non-prompt release of budgetary allocation for the commission.

Administrative bottlenecks: This stems from inadequate space for operations of the commission, lack of well-trained personnel, lack of an electronic database, etc. These in turn result in a disorganised filing system, loss of files, an unduly protracted registration process and a lack of qualitative rulings issued by the Registry.

Lack of public awareness and cooperation: There is often a lack of public awareness and cooperation regarding these rights and processes.

Regulatory conflicts The Corporate Affairs Commission and the Trade Marks Registry are expected to work hand in hand to ensure efficient enforcement of name prohibition. There are no mechanisms for data synergy between both to ensure efficient enforcement of name prohibition.

Inadequacies of the judicial enforcement: This manifests in delays in the judicial system arising from prolonged adjournments.

Probable solutions

In order to properly curb the challenges of effective enforcement of consumer rights and trademark infringements in Nigeria, the government and its agencies need to critically identify the problems bedevilling the administration of this creative sector of the economy, and tackle them with immediate effect. It may be difficult to eradicate the menace completely, but reducing it to the lowest minimum will be commendable.

Appropriate punitive measures should be enacted to deter defaulters from infringing. Expert personnel should be employed in the registries to take care of examination, and regulatory agencies should be set up to regulate the hawking of products to control the distribution of counterfeits.

The commissions should be better funded by the Government to enable them to carry out their mandates effectively. They should be provided with new infrastructures and high-tech facilities for effective monitoring of activities of infringers, counterfeits or pirates. There should be an increase in sensitisation and public awareness of the intellectual property laws.

It is worth noting that most counterfeited materials are imported and exported through the borders. The customs service, in carrying out its duties, should implement a formal scheme to handle the examination, re-examination, or take samples from the goods before they are exported and imported into and out of the country.

Academically, intellectual property should be added to the Nigerian university curriculum. Public and private financing of university education on intellectual property and technology should be encouraged.

Finally, the Nigerian police also have a role to play; the police should have a formal scheme in place to conduct raids, arrests, and prosecute infringers more efficiently.

Izuchukwu Chinedo is a trademark and patent attorney at Inventa, and can be contacted at ichinedo@inventa.com