- Trade Marks Act Chapter 436, 1990
- The Registrar and the register
- Effects of registration and non registration
- Registrability and validity of registration
- Procedure for and duration of registration
- Assignment and transmission
- Use and non use
- Rectification and correction of register
- Certification Trade Marks
- International arrangements
- Regulations
- Legal proceedings and appeals
- Evidence
- Offences, and restraint of use of Arms of Nigeria etc
- Miscellaneous and supplemental
- Untitled
Trade Marks Act
Chapter 436
Laws of the Federation of Nigeria 1990
An Act to repeal the Trade Marks Act and make new provisions with respect to trade marks in place thereof and for connected purposes.
1st day of June 1967
The Registrar and the register
1. (1) 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 he Federal Civil Service Commission and whose office shall be situated in the Federal Capital Territory, Abuja.
(2) The Registrar shall in the exercise of his functions other than the taking of any decision which under this Act is subject to appeal to he court, act under he general direction of the Minister.
(3) Any act or thing directed to be done by or to the Registrar may be done by or to any other officer in the public service of he Federation authorised by he Minister.
(4) The Registrar shall have an official seal which shall be officially and judicially noticed.
2. (1) There shall continue to be kept the record called the register of trade marks, in which shall be entered all registered trade marks with the names and addresses of their proprietors, the date on which applications were made for their registration, notifications of assignments and transmissions, the names and addresses of all registered users and such other matters relating to registered trade marks as may be prescribed.
(2) The register shall continue to be kept under he control and management of he Registrar at he Registrar's office.
(3) The register shall continue to be divided into two parts called respectively Part A and Part B,.
(4) The register shall at all convenient times be open to the inspection of the public, subject to such rules as may be prescribed.
Effects of registration and non registration
3. No person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark; 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 in respect thereof.
4. A trade mark must be registered in respect of particular goods or classes of goods, and any question arising as to the class within which any goods fall shall be determined by the Registrar, whose decision shall be final.
5. (1) Subject to the provisions of this section and of sections 7 and 8 of this Act, the registration (whether before or after the commencement of this Act) of a person in Part A of the register as proprietor of a trade mark (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 trade mark in relation to those goods.
(2) Without prejudice to the generality of the right to the use of a trade mark given by such registration as aforesaid, that right shall be deemed to be infringed by any person who, not being the proprietor of the trade mark or a registered user thereof using it by way of he 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 use as a trade mark; or
(b) in a case in which the use is use upon the goods or in physical elation 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 registered user to use the trade mark or to goods with which such a person as aforesaid is connected in the course of trade.
(3) The right to the use of a trade mark given by such registration as aforesaid shall be subject to any conditions or limitations entered on the Register, and the use of any such mark as aforesaid in any circumstances to which, having regard to any such limitations, the registration does not extend shall not constitute an infringement of that right.
(4) The use of a registered trade mark, being one of two or more registered trade marks that are identical or nearly resemble each other, in the exercise of the right to the use of that trade mark given by such registration as aforesaid, shall not constitute an infringement of the right to the use of any other of those trade marks given by such registration.
6. (1) Except as provided by subsection (2) of this section, the registration (whether before or after he commencement of this Act) of a person in Part B of the register as proprietor of a trade mark in respect of any goods shall, if valid, give or be deemed to have given to that person the like right in relation to those goods as if the registration had been in Part A of the register, and section 5(2) to (4) of this Act shall apply in relation to a trade mark registered in Part B accordingly.
(2) In any action for infringement of the right to the use of a trade mark given by such registration as aforesaid in part B of the register, no injunction or other relief shall be granted to of the register, no injunction or other relief shall be granted to the plaintiff if the defendant establishes to the satisfaction of the court that the use of which the plaintiff complains is not likely to deceive or cause confusion or to lead to the belief in a connection in the course of trade between the goods and some person entitled either as proprietor or as a registered user to use the trade mark.
7. Nothing in this Act shall entitle the proprietor or a registered user of a registered trade mark to interfere with or restrain the use by any person of a trade mark identical with or nearly resembling it in relation to goods in relation to which that person or a predecessor in title of his has continuously used that trade mark from a date previous to -
(a) the use of the first mentioned trade mark in relation to those goods by the proprietor or a predecessor in title of his; or
(b) the registration of the first mentioned trade mark in respect of those goods in the name of the proprietor or a predecessor in title of his, whichever first occurred, or (where such use is proved) to object to that person being put on the register for that identical or nearly resembling trade mark in respect of those goods under section 13(2) of this Act.
8. The registration of a trade mark shall not interfere with -
(a) any bona fide use by a person of his own name or the name of his place of business, or of the name, or the name of the place of business, of any of his predecessors in business; or
(b) the use by any person of any bona fide description of the character or quality of his goods, not being a description that would be likely to be taken as importing any such reference as is mentioned in section 65(2)(b) or 43(4) (b) of this Act.
Registrability and validity of registration
9. (1) In order for a trade mark (other than a certification trade mark) to be registrable in Part A of the register it must contain or consist of at least one of the following essential particulars -
(a) the name of a company, individual, or firm, represented in a special or particular manner;
(b) the signature of the applicant for registration or some predecessor in his business;
(c) an invented word or invented words;
(d) 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;
(e) any other distinctive mark:
Provided that a name, signature or word or words other than such as fall within paragraphs (a) to (d) of this section, shall not be registrable under paragraph (e) of this section, except upon evidence of its distinctiveness.
(2) For the purposes of this section, "distinctive" means adapted, in relation to the goods in respect of which a trade mark is registered or proposed to be registered, to distinguish goods with which the proprietor of the trade mark is or may be connected in the course of trade from goods in the case of which no such connection subsists, either generally or, where the trade mark is registered or proposed to be registered subject to limitations, in relation to use within the extent of the registration.
(3) In determining whether a trade mark is adapted to distinguish as aforesaid, the tribunal may have regard to the extent to which -
(a) the trade mark is inherently adapted to distinguish as aforesaid; and
(b) by reason of the use of the trade mark or of any other circumstances, the trade mark is in fact adapted to distinguish as aforesaid.
10. (1) In order for a trade mark to be registrable in Part B of the register, it must be capable, in relation to the goods in respect of which it is registered or proposed to be registered, of distinguishing goods with which the proprietor or the trade mark is or may be connected in the course of trade from goods in the case of which no such connection subsists, either generally or, where the trade mark is registered or proposed to be registered subject to limitations, in relation to use within the extent of the registration.
(2) In determining whether a trade mark is capable of distinguishing as aforesaid, the tribunal may have regard to the extent to which -
(a)