The Trademarks Act Cap T13 Laws of the Federation of Nigeria (Herein after referred to as the ‘Trademarks Act LFN 2004’) is made up of 13 Parts 69 sections and two (2) schedules.
A notable feature of the Trademark Act is hidden in the procedure for registration. The Act calls for the advice of the Registrar to be sought after by the applicant who wishes to register a mark to determine if the intending mark is distinguishable. This is the first step before any application can be made. This step is irrelevant as the Act further provides for an application to either be refused, accepted, or accepted subject to amendment by the Registrar. The reason being that if the Registrar can refuse a mark on the grounds of it being indistinguishable, or demand for its alteration, there is no need for the advice of the Registrar to be sought to determine its distinctiveness.
Furthermore, as stated earlier, the Trademark Act provides that “the Registrar may refuse the application, or may accept it absolutely or subject to such amendments, modifications, conditions or limitations, if any, as he may think right”. The Act does not provide the grounds under which an application to register a mark may be refused. The implication of this is that the power of the Registrar to accept any application is completely discretionary. It should be noted that to ensure adequate fairness, if the Registrar is given power to accept or refuse an application, it is reasonable that there should exist a boundary or restriction by which the Registrar can either accept or refuse an application. In my opinion, the absence of this may tend to pave the way for corrupt practices easily. Furthermore, if for instance, certain grounds by which the Registrar can refuse an application are provided for by the Act, it reinforces the decision of the Registrar on any application brought before him, and in the occurrence of the decision of the Registrar being challenged before any competent court of law, it suffices to say that the stipulated grounds would evidence the reasons behind his decisions.
With modernization, there is the question on the implementation of the provisions of the Act with respect to Trademark on the internet. Honestly speaking, interpreting the provisions of the Act to apply to trademark on the internet tends to be highly cumbersome. This is because of the nonexistence of provisions in the Act expressly addressing the topic. This ground as such also calls for the amendment of the Act to include such provisions covering registered trademarks online.
With respect to the international sphere, the Act provides that any person who has applied for protection for any trade mark in a convention country or his legal representative or assignee shall be entitled to registration of his trade mark under this Act; and the registration shall have the same date as the date of the application in the Convention country. It is pertinent that marks or emblems of international bodies of which Nigeria is a member, be protected. But there are puzzling questions. Is it expedient for trademarks containing the abbreviations or emblems of international bodies of which Nigeria is a member, to be registered in other to be protected in Nigeria? The Act has no provision to provide an answer to this; nor does it mention international bodies or their emblems and is therefore silent on the subject.
It is pertinent that the trademarks or emblems of international bodies or organization of which Nigeria is a member be protected by the Trademark Act, with such mark or emblem deemed registered under the Act.
In conclusion, a critical review of the Trademark Act does show that the Act needs so much amendments that the implementation of the Act under the current Nigerian Economy seems problematic. With such scanty provisions, the continuous use of the Act does bring shame, and of course tends to place a lot of responsibilities on the court to therefore determine a justiciable end to cover matters which are not covered by the Act.