By Mgboji Uchenna Emmanuel
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In Nigeria, particular brand names are so ingrained in consumers’ daily vocabulary that they now represent whole product categories. This prevalent linguistic shift, though often seen as a testament to a brand’s popularity, carries a considerable risk under trademark law: the threat of genericide.
What is Genericide?
Genericide is the process by which a trademark loses its legal protection because it has become the generic name for the product or service it represents. Under Nigerian law, as in many other jurisdictions, a valid trademark must be distinctive and capable of identifying the goods or services of one trader from those of others. If a trademark becomes generic in the eyes of the public, it can no longer fulfil this function and may be removed from the register of trademarks.
The Legal Framework in Nigeria
The governing law is the Trademarks Act, Cap T13, Laws of the Federation of Nigeria 2004. According to Section 9, a mark must be inherently distinctive or capable of distinguishing goods or services. Section 38 provides for removing a trademark if it becomes deceptive, misleading, or non-distinctive. The Court of Appeal in the case of Procter Gamble Co. v. G.S. & D. Ind. Ltd. (2013) 1 NWLR (Pt. 1336) 409 held thus: “A valid trademark can only become generic if the consuming public misuses the mark or name sufficiently for the mark to become the generic name for the product.”
Though Nigerian case law on genericide is still sparse, the principles are well-recognised and aligned with international standards, including the Paris Convention and the TRIPS Agreement.
Examples of Brands in Nigeria That May Be Generic or at Risk of Becoming One.
It is pertinent to note that several high-profile brands in Nigeria are at risk of becoming generic due to consumer usage trends, and some of them are:
- Indomie: This is often referred to any brand of instant noodles, and the risk of becoming generic is extremely high. Many Nigerians say “Indomie” even when referring to other brands like Mimee, Honeywell, or Dangote Noodles. Indomie is a registered trademark of Dufil Prima Foods, but the term is at real risk of becoming generic unless public usage is corrected.
- Dettol: This is another product that is commonly used to mean any antiseptic liquid, even non Dettol brands like Savon, Septol are referred to as “Dettol”. This puts it at a high risk of becoming generic. Dettol is a registered trademark and is owned by Reckitt Benckiser.
- Omo: Gen X and Millennials commonly refer to any detergent as Omo. It is often used generically, even when referring to other detergents like Ariel, So Klin, Viva, etc. Omo is a registered product of Unilever, and it risks being generic.
- Gala: Commonly used to mean any sausage roll snack. “Buy me Gala” may refer to brands like Rite, Meaty, or Bigi Roll. Gala is a product of UAC Foods, and this poses a potential high risk of becoming generic like others.
- Maggi: Nigerians refer to any seasoning cube as “Maggi,” even when using Knorr, Royco, Onga, etc. Maggi is owned by Nestlé, and it has a high risk of becoming generic.
- Flit and Shelltox: These brands have become generic terms in Nigeria. These are insecticide brands owned and registered by Standard Oil and Shell Petroleum Company, respectively. Nigerians referred to any insecticide as Flit or Shelltox, even when we have other insecticides like Baygon, Sniper, Mortein, etc.
These brands have become linguistic shortcuts, often used even when referring to competing products. While this demonstrates brand dominance or popularity, it also dilutes the trademark’s distinctiveness.
International Perspective: Lessons from Global Brands
Globally, several brands have succumbed to genericide or continue battling its effects. Notable examples include:
- Aspirin – Originally a trademark of Bayer, now generic in many countries.
- Thermos – Once a brand name, now a generic term for vacuum flasks.
- Escalator – Formerly a trademark of Otis, lost to genericide.
- Google – Although still a valid trademark, the term “Google” is widely used as a verb meaning “to search the internet.” In Elliott v. Google Inc. (2017), the U.S. Ninth Circuit Court ruled that verb usage alone did not render the trademark generic because consumers still associated the term with the company.
These examples highlight the precarious balance between popularity and the loss of distinctiveness. They serve as cautionary tales for Nigerian brands enjoying significant market dominance.
Legal and Commercial Implications
If a trademark becomes generic, it can be struck off the register, resulting in loss of exclusive rights, market confusion and reduced brand value. This can have severe commercial consequences for brand owners, including loss of market share and erosion of goodwill.
Preventing Genericide: Strategies for Brand Owners
To preserve trademark rights, brand owners in Nigeria should endeavor to employ the following strategies:
- Educate consumers about proper brand usage.
- Use the trademark with a generic descriptor (e.g., “Indomie® instant noodles”).
- Avoid using the trademark as a verb or noun in marketing.
- Issue brand usage guidelines to partners and the media.
- Enforce trademark rights through cease-and-desist letters where necessary.
Conclusion
Genericide is a real and growing threat in Nigeria’s consumer market. While widespread brand recognition is a success metric, it can become a double-edged sword if legal distinctiveness is lost. IP practitioners, brand managers, and policymakers must take proactive steps to preserve the integrity of well-known trademarks and maintain a competitive, fair market. Although there is no reported Nigerian case directly involving genericide of a trademark like Google’s, Nigerian IP lawyers and brand owners should note that Continuous public education and Strict brand enforcement are essential to preserving trademark rights, particularly for highly popular and frequently used marks.
Uchenna Emmanuel Mgboji is an experienced Legal Practitioner with over a decade of active practice in Intellectual Property Law and Entertainment Law. He is also a Chartered Member at the Institute of Intellectual Property, Nigeria.
His extensive knowledge and expertise in IP Law, have earned him a reputation as a highly skilled and trusted legal professional.
If you require any further information, kindly contact him via email: urchlaw7@gmail.com
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