What is a Trademark?
Section 67 of the Trademark Act defines a trademark as a mark used or proposed to be used in relation to goods (and services) for the purpose of indicating, or so as to indicate, a connection in the course of trade between the goods and some person having the right either as proprietor or as registered user to use the mark, whether with or without any indication of the identity of that person.
A trademark includes a device, brand, heading, label, ticket, name, signature, letter, numeral, or any combination thereof.
Under Part A of the Trade Mark Act, a trademark includes;
- The name of a company, individual, or firm, represented in a special or particular manner
- The signature of the applicant for registration or some predecessor in his business.
- An invented word or invented words
- A word or words having no direct reference to the character or quality of the goods, and not being according to its ordinary signification a geographical name or a surname.
- Any other distinctive mark.
Types of Trademarks
- Word Mark: eg. Blackberry, Apple, Samsung
- Slogans: eg. “Just do it”
- Names: eg. Heinz, Heineken etc
- Letters or combination of letters: e.g. HP, EVA etc
- Logos
- Symbols and Devices
Trademark Classification in Nigeria
Words, Logos, Devices, Stylized words, Images etc are registered in classes based on the Nice Classification. The Nigerian Classification is based on the Nice Classification system and is divided into 45 Classes of Goods and Services. The Trademark Regulations were amended to provide for the extension of trademark classes to include Service Marks in 2007. The trademark classes in Nigeria is in line with the Nice International Classification of Goods and Services of the Nice Agreement 1957.
The Registrar of Trademarks
Section 1 of the TMA creates the office of the Registrar of Trademarks;
- There shall continue to be an officer known as the Registrar of Trade Marks (in this Act referred to as “the Registrar) who shall be appointed by the Federal Civil Service Commission and whose office shall be situated in the Federal Capital Territory, Abuja
The Registrar is appointed by the Federal Civil Service Commission. He sits in the Federal Capital Territory, Abuja. He carries out dual Administrative and Quasi-Judicial functions. The Registrar is subject to judicial oversight by the Court and administrative oversight by the Federal Minister of Trade and Investment. His seal is judicially noticed.
The Trademark Registry
The trademark registry is the administrative center for the registration and administration of trademarks in Nigeria. Headed by the Trademark Registrar, the Registry functions as a part of the Commercial Law Department of the Federal Ministry of Industry, Trade and Investment. The trademarks Registry is located in the FCT, Abuja at the Old Federal Secretariat, Area 1, Garki and is made up of various units including Registrar’s Office, Accounts, Search, Examiners Unit, Opposition, Certificate, the file room.
The register of trade marks is created in Sec. 2 of the TMA. The Trademarks Register is a public record of trademarks, particulars of proprietors, notifications of assignments, details of registered users and other matters relating to registered trademarks in Nigeria. The register is a searchable public document and is under the control and management of the registrar of trademarks. The contents of the register purporting to be certified by the registrar and sealed with the seal of the registrar shall be admitted in evidence in all courts and in all proceedings without further proof or production of the original.
Nigeria operates a bicameral Register, divided into Part A and Part B. Section 2(3) TMA provides that “the register shall continue to be divided into two parts called respectively Part A and Part B”. the requirement for registration under Part B is less stringent than Part A. Consequently, the rights conferred by registration under Part B are limited in scope. The UK ended the dual regime in 1994. A trademark may be registered in Part B notwithstanding any registration in Part A in the name of the same proprietor of the same trademark or any part or parts thereof.
Effect of non-registration of trademark
An unregistered trademark does not grant the proprietor of such trademark any right to institute any proceeding to prevent, or to recover damages for, the infringement of such trademark. Section 3 of the TMA lays it succinctly as follows;
No person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trademark; but nothing in this Act shall be taken to affect rights of action against any person for passing off goods as the goods of another person or the remedies thereof.
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