The Privatisation Of Culture: A Legal Challenge To The "Detty December" Trademark

In October 2025, a four-year-old trademark quietly registered in 2019 suddenly re-entered public discourse. Livespot360 co-owned by Deola and Darey Art Alade was revealed by a post on X (formerly Twitter) to be the proprietor of the trademark "Detty December" for entertainment-related services when the company announced its "Detty December Fest." Social media erupted with a lot of criticism and backlash against it. Nigerians have since been arguing that "Detty December" is a communal cultural expression, not a private brand and as such it should not be trademarked.

This public backlash has raised an important legal question: Is "Detty December" a validly registered trademark under Nigerian law, and if not, can the registration be revoked? Let's examine this controversy through the lens of the Trademarks Act and relevant legal principles.

What Makes a Trademark Registrable in Nigeria?

The very bedrock of trademark law is distinctiveness meaning that a trademark must be distinctive and capable of distinguishing the goods or services of one business from another. Section 9¹ requires that for a trademark to be registrable under Part A of the Act, the mark must contain essential particulars such as an invented word or a word that has no direct reference to the character or quality of the goods and is distinctive in fact or by use. Section 10² further provides that marks under Part B must at least be capable of distinguishing one trader's goods from another trader's goods. Again, Section 11³ of the Act also prohibits marks that would be deceptive, scandalous, or contrary to law or morality.

It's Implication for "Detty December"

The phrase "Detty December" had become widely popular before 2019. It had entered Nigerian pop culture as a slang referring to end-of-year festivities. If, at the time of registration, the phrase had already become generic or descriptive of a cultural season rather than a distinctive brand, then it may not have fulfilled the distinctiveness requirement under Section 9⁴.

A word or phrase that merely describes the quality, characteristic, or period of the goods/services is deemed descriptive and generally not registrable, as it is needed by the public and competitors to describe their own respective goods and services. When Livespot360 registered "Detty December" for "festivals and events", it was essentially monopolising the common-language descriptor for events happening in that specific celebratory period. A mark that is generic or descriptive, even if it has been used by the proprietor, poses a severe challenge to its validity.

Could the Trademark Be Revoked for Being Descriptive or Non-Distinctive?

In determining validity, the Trademark Registrar or court would consider if the mark is inherently adapted to distinguish or if it is adapted to distinguish by reason of use (i.e matter disentitled to protection because its use would likely cause confusion about ownership of a cultural phrase under Section 11⁵). Given the cultural, pre-existing, and widespread use of the term by the general public and multiple event organisers, the mark is inherently weak and arguably generic for events in December. Under Sections 9 and 11, marks that lack distinctiveness or are deceptively registered should not remain on the register. If a mark improperly made it onto the register that can justify rectification under Section 38⁶.

Although there is no extensive body of case law directly on point concerning the descriptiveness of cultural slang, the principles of non-distinctiveness and common usage have been tested. In Elo Othuke Azaino v. Sterling Bank Plc.⁷ The Federal High Court observed that the word "choplife" was "commonly used in Nigerian lingua and has no distinctiveness attached to it," leading to a rejection of the plaintiff's infringement claim regarding the "CHOPLIFE" trademark. This provides strong support for the argument that phrases embedded in the common, everyday language of Nigerians cannot be monopolised by a single proprietor, especially in relation to general entertainment services, because they are devoid of distinctiveness.

Can the Trademark Be Revoked for Non-Use?

Although Livespot360 stated that it trademarked the "Detty December" since 2019, there is no trace of the fact that the phrase had been commercially used by them. If it is proven that they have not commercially used the trademarks since 2019, then the trademark can potentially be removed from the register on the grounds of non-use under the Nigerian Trademarks Act.

Section 31(2) of the Trademarks Act provides two distinct grounds on which a person concerned can apply to the Federal High Court or the Registrar to have a registered trademark removed for non-use and it includes:

1. Lack of Bona Fide Intention and Initial Non-Use
2. Continuous Period of Non-Use (The Five-Year Rule)

Although the mark is currently registered, the five-year window for non-use provides a strong legal mechanism for revocation. However, the COVID-19 pandemic presents a compelling defence for Livespot360, potentially excusing the non-use for the period of restrictions. This defence will no longer avail Livespot360 anymore since lockdown policies have since elapsed.

Balancing Cultural Ownership and Trademark Rights

Trademark law, as codified in the Trademarks Act (Cap. T13), is designed primarily to protect commercial identifiers. Its core function is to allow consumers to distinguish the goods and services of one trader from those of another. It grants the registered proprietor the exclusive right to use the mark in relation to the goods or services for which it is registered (Sections 5 and 6). Crucially, trademark law is not designed to protect cultural heritage or common societal phrases. It safeguards source-identifying marks.

However, most cultural expressions like proverbs, shared slang, or public rituals traditionally receive protection only through collective norms, usage patterns, and social consensus, not formal intellectual property rights like trademarks or copyright. When an entertainment company registers a cultural phrase under a specific service class (Class 41 for events), it attempts to shift a phrase from the public domain of collective norms into the exclusive sphere of commercial rights. The central question raised by the controversy is whether trademarking "Detty December" constitutes the privatisation of a cultural expression. Possibly, yes.

Nonetheless, if the mark was distinctive at the time of registration, the owner could legitimately claim exclusive rights under Sections 5 and 6 of the Act.

Ultimately, the legal system's assessment of cultural marks relies on a time-sensitive, factual determination. The key legal hurdle is whether, in 2019, the phrase was still a distinctive or suggestive term (and thus registrable) or had already crossed the line into being a generic or descriptive term (and thus unregistrable) for end-of-year parties and events. The current widespread use of the phrase strongly suggests the latter.

Conclusion

If "Detty December" was already a widely used cultural slang before 2019, then the mark arguably lacked the distinctiveness required under Sections 9, 10, and 11 of the Act. It may therefore have been registered without sufficient cause.

A challenger of the existing registered trademark "Detty December" can rely on following sections by arguing that:

1. The registration was made without sufficient cause or wrongly remains on the register under Section 38
2. The non-use of the trademark for five years (if factually established) under Section 38
3. The mark is deceptive or contrary to public policy because it appropriates a public expression under Section 11
4. The mark was non-distinctive or generic at the time of registration -Section 9

A challenge could succeed if evidence shows that "Detty December" was already generic by 2019 or that there was no genuine intention to use the mark. However, if Livespot360 can demonstrate early adoption, consistent use, or brand-building around the phrase before or shortly after registration, the mark may survive.

Ultimately, whether "Detty December" can remain a private trademark or should be restored to public domain is a question the Registrar and Federal High Court is empowered to determine under Section 38.

Footnotes

1 Trade Marks Act, Cap T13, Laws of the Federation of Nigeria, 2004

2 Trade Marks Act, Cap T13, Laws of the Federation of Nigeria, 2004

3 Trade Marks Act, Cap T13, Laws of the Federation of Nigeria, 2004

4 Trade Marks Act, Cap T13, Laws of the Federation of Nigeria, 2004

5 Trade Marks Act, Cap T13, Laws of the Federation of Nigeria, 2004

6 Trade Marks Act, Cap T13, Laws of the Federation of Nigeria, 2004

7 Unreported Suit No: FHC/L/CS/332/2022

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.