A trademark is an intellectual property consisting of a recognizable sign, design, or expression which identifies products or services of a particular source from those of others.
The important elements to note about trademarks are its exclusivity, protection, identity and transferability.
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.
So, why Trademark?
Trademark registration confers;
A trademark once accepted to be registered in the trademark journal grants the exclusive right to use of the mark in respect to that products or services to distinguish one’s brand from that of other brands in the market, and the exclusive right shall be deemed infringed upon by a third party not being the owner and using it to its commercial benefit without the express permission first obtained from the owner or uses a mark so resembling as is likely to deceive or cause confusion in the minds of consumers.
This exclusive right enjoyed by the proprietor of a trademark is provided for and given legal teeth in Section 5 of the Trade Marks 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”.
Where there is a breach of the exclusivity granted a trademark owner, there is deemed to be an infringement, an infringement of trademark is defined by the aforementioned section of the act as:
“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.
Registration of trademarks gives it the needed protection to the owner to defend it against passing off, thereby safeguarding it from financial and reputation damage.
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”.
3. Identity or Uniqueness:
Trademark confers identity and distinctiveness to the economic and reputation benefits of the trademark owner.
A trademark, upon registration, can be transferred or assigned to an individual or corporation, 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.
In a larger sense, trademarks promote initiative and enterprise worldwide by rewarding the owners of trademarks with recognition and financial profit.
Trademark protection also hinders the efforts of unfair competitors, such as counterfeiters, to use similar distinctive signs to market inferior or different products or services.
The system enables people with skill and enterprise to produce and market goods and services in the fairest possible conditions, thereby facilitating international trade.
Every business is encouraged to protect its intellectual property for its business reputation or projected business reputation and economic benefits.
Registration of trademarks are done at the Trademark Registry, under the Ministry of trade and investments in Nigeria.
Trademark registration is done by accredited agents.
For more information on Trademarks, designs and patent registration in Nigeria, email us at firstname.lastname@example.org or call 07057663782
Published by IP Practice Group at Starlion Legal