In this advanced digital age where imitation has become extremely easy, the best way to guarantee the protection of your brand is by registering it with the Trademarks registry. The earlier you register your brand, the more likely it is protected. This is because under Nigerian law, specifically section 3 of the Trademarks Act, 1967 (“Trade Marks Act”) you are not entitled to institute any proceeding to prevent, or to recover damages for, the infringement of a trademark until it is registered.[1]
What Marks are Protected under the Trade Marks Act?
A trademark is any sign, or any combination of signs used to distinguish the goods and/or services offered by a person or organisation or brand from those offered by another person or organisation. Article 15.1 of the Trade Related Aspects of Intellectual Property Rights (TRIPS) describes a trademark as follows:
“Any sign or any combination of signs, capable of distinguishing the goods and services of one undertaking from those of other undertakings, shall be capable of constituting a trademark. Such signs, in particular words including personal names, letters, numerals, figurative elements and combinations of colours as well as any combination of such signs, shall be eligible for registration as trademarks.”
Section 67 of the Trade Marks Act defines a “mark” to include a device, brand, heading, label, ticket, name, signature, word, letter, numeral, or any combination thereof. Section 69 Business Facilitation (Miscellaneous Provisions) Act, 2023 (BFA) further defines “trademark” to include “…shape of goods, their packaging and combination of colours”.
When we combine the content of these sources together, it becomes clear that the definition or constitution of “trademark” is wide. It goes beyond just a word or logo. It also covers shapes, signatures, numerals etc. In jurisdictions, like the United States of America, Australia, United Kingdom etc., non-traditional marks like sound marks, figurative elements, smell and texture marks, and hologram marks can also be registered as a trademark provided, they meet certain requirements.
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