Over the years, efforts have been made to promote the awareness of IP rights in Nigeria and to sensitize the public on the various mechanisms available to protect creative and innovative works. However, and despite the gradual uptake in IP awareness in the country, these efforts have been hampered by inadequate and outdated laws currently in place, many of which have not been amended or updated since they were enacted into law many years ago. The current laws in place are primarily the Trade Marks Act, Cap. T13, Laws of the Federation of Nigeria 2004 (based on the original 1965 Act), the Copyright Act (as amended),2 Cap. C28, Laws of the Federation of Nigeria 2004 (based primarily on the 1988 version), Patents and Designs Act, Cap. P2, Laws of the Federation of Nigeria 2004 (a codification of the 1970 Act), the Trade Malpractices (Miscellaneous Offences) Act, Cap. T12, Laws of the Federation of Nigeria 2004 and the Merchandise Marks Act, Cap. M10, Laws of the Federation of Nigeria 2004 (a reproduction of the 1916 Act).
Concerted attempts to comprehensively amend the laws relating to industrial property go as far back as 1991 and although these efforts have gained some traction over the years, nothing of tangible substance has been accomplished in terms of effecting these proposed changes.3 In 2016 however, resumed efforts in the form of the Industrial Property Commission Bill (IPCOM)4 was presented to the National Assembly with the aim of harmonizing all current Intellectual Property laws and governing bodies by providing for the establishment of the industrial property Commission of Nigeria, repealing of the Trade Marks Act cap. T13, LFN 2004, the Patents and designs Act, cap 344, LFN 2004 and to make comprehensive provisions for the regulation of trademarks, patents and designs, plant varieties, animal breeders and Farmers rights and for other related matters. The Bill has now passed the second reading at the House of Representatives and is awaiting further legislative action.
There is also a separate Trade Mark Bill 5 which seeks to repeal the current Trade Marks Act 1965. The Bill has passed through the first and second readings, as well as the committee hearing which held in March 2018. The Trade Mark Bill like the IPCOM Bill seeks to harmonize Nigerian law in tandem with international best practices.
Key Provisions in the IPCOM Bill
In addition to more substantive provisions, the IPCOM Bill provides for a separate and autonomous administrative agency for trademark matters.
- The Bill provides for the establishment of an Industrial Property Commission of Nigeria known as "the Commission" with the establishment of a governing Council to supervise the administration of the laws relating to industrial property and ensure rapid and coordinated development of industrial property related issues. The new Trade Mark Bill represents the establishment of a single law and body for the administration of trademarks, copyright, patents and designs in Nigeria among other necessary improvements.
- The Bill further provides that the Commission shall liaise with organs of the government and other agencies for proper enforcement of industrial property rights; monitor and supervise Nigeria's position in respect of international conventions relating to industrial property matters and to advise the Government on these matters periodically.
- The Commission is also empowered to make regulations generally, for the purposes of the proper administration of industrial property law and matters relating to it, subject to the approval of the Minister.6
- The Bill further provides for the establishment of a Fund for the Commission from which all expenditure of the Commission shall be defrayed.
- It stipulates higher penalties and fines for infringement of trademarks.
1 John Onyido, Partner and Head IP and Technology Department, SPA Ajibade & Co., Yetunde Okojie, Senior Associate, Intellectual Property Department, SPA Ajibade & Co., Lagos; Oluwasolape Owoyemi, Associate Intellectual Property Department, SPA Ajibade & Co., Lagos, Nigeria.
2 Unlike other IP related legislation in the country the Copyright Act has witnessed useful amendments in 1988, 1992 and 1999, respectively.
3 See the Report on the Reform of Industrial Property Law, published by the Nigerian Law Commission 1991.
4 Initially prepared back in 2008.
5 Trade Marks Bill 2016, SB.357.
6 The Bill provides for the application of the Pension Act 2004 No. 2. It states that service in the Commission shall be approved service for the purpose of the Pensions Act and accordingly, officers and other persons employed in the Commission shall in respect of their service in the Commission be entitled to pension, gratuity and other retirement benefits enjoyed by persons holding equivalent grades in the public service of the Federation. See section 10 of the IPCOM Bill.
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