Trademarks in Nigeria: Definition, Nature and Functions Under the Trade Marks Act

Walk into any major supermarket in Lagos or Kano and the shelves tell a story of trademark law in action. The red-and-white Indomie packaging, the distinctive Coca-Cola bottle shape, the Dangote logo on bags of cement, the green MTN branding across every billboard on the expressway: each of these is a trademark, each is a registered piece of intellectual property, and each represents a business decision to invest in a brand identity that the law will protect against imitation. Now step outside and walk past the roadside market, where counterfeit Indomie noodles in packaging barely distinguishable from the original are sold to consumers who may not know the difference. That is trademark infringement, and understanding why the law treats it seriously requires first understanding what a trademark actually is and what it is meant to do.

This article is the foundation of the trademark cluster. Before questions of registration, infringement, or passing off can be properly addressed, students must understand what a trademark is under Nigerian law, what functions it serves, who the law treats as the relevant audience for assessing similarity and confusion, and how the governing statute, the Trade Marks Act Cap T13 LFN 2004, sits in the Nigerian legal landscape alongside its most significant recent amendment.

1. The Governing Framework: An Archaic Statute and Its 2023 Upgrade

The primary legislation governing trademarks in Nigeria is the Trade Marks Act Cap T13 Laws of the Federation of Nigeria 2004, which consolidates the original Trade Marks Act 1965.¹ That 1965 Act was, by the admission of Nigerian scholars who have examined it closely, a near-verbatim reproduction of the United Kingdom’s Trade Marks Act 1938, transplanted into Nigerian law at independence with minimal adaptation.² The UK itself repealed and replaced the 1938 Act with the Trade Marks Act 1994, a modern statute reflecting thirty years of European harmonisation and technological change. Nigeria’s equivalent statute remained frozen in its 1965 form for nearly six decades without substantive amendment.

This legislative inertia has had practical consequences. The TMA 1965 was designed for a world of physical goods sold in domestic markets. It had no concept of service marks, no framework for protecting the shape or packaging of goods as trademarks, no colour mark protection, and no explicit mechanism for the protection of well-known international marks against dilution. Its provisions on licensing and assignment were widely criticised for failing to adequately protect consumers from deception through “bare licences” unconnected to quality control.

The most significant reform arrived not through a standalone Trademarks Act reform bill but through a broader omnibus legislative initiative: the Business Facilitation (Miscellaneous Provisions) Act 2022, signed into law by President Muhammadu Buhari on 14 February 2023.³ Section 69 of the BFA amended section 67 of the TMA, which is the interpretation section, in two critical ways. First, it expanded the definition of “goods” to include “services,” bringing service marks within the statutory framework for the first time.⁴ Second, it replaced the existing definition of “trade mark” with a new and wider definition that expressly includes the shape of goods, their packaging, and combinations of colours.⁵ These changes, while significant, did not overhaul the TMA’s registration and infringement provisions, which remain based on the 1965 structure.

Supporting the TMA is the Trademarks Regulations 1967, the Merchandise Marks Act Cap M10 LFN 2004, the Trade Malpractices (Miscellaneous Offences) Act Cap T12 LFN 2004, and the Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Act Cap C34 LFN 2004, each of which creates additional criminal liabilities for specific forms of trademark misuse.⁶

2. The Definition of a Trademark: Before and After the BFA

The original definition of “trade mark” in section 67 of the TMA, before the BFA amendment, read as a mark “used or proposed to be used in relation to goods for the purpose of indicating, or so as to indicate, a connection in the course of trade between the goods and some person having the right either as proprietor or as registered user to use the mark, whether with or without any indication of the identity of that person.”⁷

This original definition had three critical limitations. First, it applied only to goods, not services, meaning that a bank, a law firm, a telecommunications company, or any other service business technically could not register a trademark under the TMA, only a mark connected to goods. Second, the “in the course of trade” requirement limited protection to commercial trading activity, excluding marks used in non-commercial contexts. Third, the definition of “mark” in section 67 was confined to “a device, brand, heading, label, ticket, name, signature, word, letter, numeral, or any combination thereof,” a formulation that excluded shapes, packaging, and colours, meaning that the distinctive bottle shape of a product or the distinctive colour combination of a brand’s packaging could not be registered.

The BFA’s amended definition addresses all three limitations. A trade mark is now “a mark used or proposed to be used in relation to goods or services for the purpose of indicating a connection between the goods or services and a person having the right, either as a proprietor or as a registered user, to use the mark, whether with or without any indication of the identity of that person, and may include the shape of goods, their packaging, and combinations of colours.”⁸

Students should note three things about this new definition. First, goods now includes services, so service marks are registrable. Second, the phrase “in the course of trade” no longer qualifies the definition, which has been interpreted as potentially allowing registration for marks used in non-commercial activities. Third, shape, packaging, and combinations of colours are now expressly includable, though a combination of colours rather than a single colour remains the standard for colour mark protection.

3. The Service Marks Validity Gap: A Genuine Legal Controversy

The BFA’s extension of trademark protection to service marks resolved the legislative ambiguity going forward, but it created a transitional legal controversy that Nigerian courts have not yet definitively resolved and that students who understand it will distinguish themselves in examination.

Before the BFA came into force, Nigeria’s trademark registry had been accepting service mark applications since approximately 2007, when the Minister of Industry, Trade and Investment issued a directive expanding the classification of goods to include service classes 35 to 45 of the Nice International Classification.⁹ This administrative workaround allowed banks, telecoms companies, airlines, and other service businesses to file and obtain trademark registrations in the service classes. The legal problem was that the Minister’s power under section 45(1)(b) of the TMA is to make regulations concerning the classification of goods. Service marks are not goods. Many practitioners queried whether the Minister had authority to introduce an entirely new category of registrable subject matter, arguing that only the National Assembly could amend the TMA in that way.¹⁰

The BFA’s amendment does not have retroactive effect under Nigerian statutory interpretation principles.¹¹ This means that service mark registrations filed and obtained under the Minister’s 2007 directive, before the BFA came into force on 14 February 2023, continue to face arguments that they were not validly registered. A company challenging such a registration in infringement proceedings might argue that the registration lacks a valid statutory foundation because the Minister exceeded her powers in creating the service classes. Service mark owners who registered before the BFA should monitor this question closely and consider whether seeking fresh registration under the statutory framework the BFA provides is commercially advisable. This is precisely the kind of transitional legal uncertainty that Nigerian courts will eventually need to resolve.

4. The Functions of a Trademark: Why the Law Protects Them

Understanding the legal framework requires first understanding why trademarks attract legal protection at all, since the justification shapes how courts interpret and apply trademark law.

A trademark serves four distinct economic and commercial functions, each of which trademark law is designed to protect.

The origin or source function is the most fundamental: a trademark tells consumers where a product or service comes from, identifying the producer or provider. When a consumer buys a packet of Indomie noodles, the trademark on the packaging is their assurance that the product comes from Dufil Prima Foods, whose manufacturing standards and quality they have experienced before.¹² This is why the Supreme Court in Ferodo Ltd & Anor v. Ibeto Industries Ltd described a trademark as “what indicates a connection” between the goods and a particular person.¹³ Source identification is the core purpose around which trademark law is built.

The quality function flows from the source function. Because a trademark identifies the source, it also communicates, implicitly, a representation about consistent quality: the consumer buying the same mark a second time expects the same quality they received the first time. Trademark law protects this quality signalling function by preventing competitors from free-riding on the reputation that a trademark owner has built by associating their mark with a particular standard of goods or services.

The advertising function recognises that trademarks have independent commercial value beyond mere identification. A strong brand like MTN or Dangote communicates not just the identity of the provider but an entire set of associations, reliability, scale, Nigerian pride, business success, that the trademark owner has invested in building through years of marketing. Protecting the trademark against imitation protects the advertising goodwill that the investment has created.

The investment function is the broadest: businesses invest in their brands, and that investment would be irrational if competitors could simply adopt the same or confusingly similar marks and benefit from the original investor’s effort without cost. Trademark protection gives brand investment a legal return. Without it, the rational commercial response to the risk of imitation would be to underinvest in brand building, producing weaker brands and greater consumer confusion across the market.

These functions also explain why trademark law focuses on consumer perception as its critical test: protection is ultimately about what the consumer understands the mark to mean, and an infringement is harmful precisely because it disrupts or exploits that consumer understanding.

5. Trade Mark vs Trade Name: A Distinction That Matters

The TMA draws a clear distinction between a trade mark and a trade name, and students who conflate the two produce imprecise analysis.

A trade mark distinguishes the goods or services of one enterprise from those of others.¹⁴ It is affixed to, used in connection with, or associated with particular products or services to signal their origin. The mark protects specific goods and services, not the enterprise that produces them.

A trade name identifies the enterprise itself and distinguishes it from other enterprises as a whole.¹⁵ A trade name symbolises the goodwill and reputation of the business entity, without necessarily referencing any particular product. “Dangote Group” is a trade name identifying the conglomerate as a business entity. “Dangote Cement” is a trade mark indicating the origin of a specific category of product.

The distinction is not merely terminological. Trade marks are registered under the TMA and attract statutory protection tied to specific goods and service classes. Trade names are governed by the Corporate Affairs Commission and the Companies and Allied Matters Act 2020 framework for business name registration. Registration under CAMA does not confer trademark protection, and registration of a trademark does not automatically give the owner the right to use the name as a corporate business name. The two regimes overlap in practice, since many businesses use their corporate name as a trademark and register it in both frameworks, but each registration provides different rights and has to be managed and enforced through different legal mechanisms.

6. The Principle of Territoriality

The Trade Marks Act is a Nigerian statute and the rights it confers are strictly territorial. A trademark registered under the TMA is protected only within Nigeria.¹⁶ A Nigerian trademark has no legal effect in Ghana, the United Kingdom, the United States, or any other country. Similarly, a trademark registered elsewhere has no statutory protection in Nigeria unless it is separately registered here.

The consequences of this are directly relevant to the Nigerian market’s position in global trade. A well-known international brand, however famous it is globally, that has not registered under the Nigerian TMA, cannot bring a statutory trademark infringement action in Nigeria against a local company using the same or a similar mark. Their remedy, if any, would be at common law through the action for passing off, which has its own distinct requirements and which is examined in Passing Off in Nigeria: The Unregistered Mark’s Protection and the Jurisdiction Controversy.

The territoriality principle is an international standard inscribed in Article 6 of the Paris Convention for the Protection of Industrial Property, to which Nigeria is a party.¹⁷ The Convention itself provides that a mark duly registered in one member country is independent of marks registered in other countries, including the country of origin. This means that a Nigerian company that registers a mark first in Nigeria has a valid Nigerian registration even if an identical mark is registered elsewhere, and a foreign company cannot claim priority in Nigeria on the sole basis that it registered first in its home country, unless it makes an application claiming Paris Convention priority within six months of its home country filing.

7. The Administration of Trade Marks in Nigeria: The Registrar and the Registry

Section 1 of the TMA establishes the office of the Registrar of Trade Marks, appointed by the Federal Civil Service Commission.¹⁸ The Registrar acts under the general direction of the Minister of Industry, Trade and Investment, and the Trademarks Registry is situated in the Federal Capital Territory, Abuja.

Section 2 of the Act requires the Registrar to maintain the Register of Trade Marks, in which all registered trade marks are entered with the names and addresses of their proprietors, the dates of applications, notifications of assignments and transmissions, and other prescribed particulars.¹⁹ The Register is divided into Part A and Part B, reflecting different levels of distinctiveness required for registration, discussed in the article on registration in this cluster.

Under sections 45 and 46, the Registrar has wide administrative powers including the power to regulate practice before the Registry, classify goods and services for the purposes of registration, award costs in proceedings before the Registry, and report annually to the Minister on the execution of the Act. The Registrar’s decisions are subject to appeal to the Federal High Court, which has exclusive jurisdiction over trademark matters.²⁰

The Nice Classification, the international classification of goods and services established by the Nice Agreement of 1957, is used in Nigeria for the description of goods and services in trademark applications.²¹ Goods fall within classes 1 to 34; services fall within classes 35 to 45 following the BFA amendment. An applicant must specify the class or classes under which they seek registration, and registration in one class does not automatically protect the mark across all classes.

8. Well-Known Marks and Defensive Registration

The TMA makes provision for the defensive registration of well-known trademarks, allowing the proprietor of a mark that is well known in connection with particular goods to register it defensively in relation to goods and services in which the mark would be likely to cause confusion or mislead consumers if used by another party, even classes unconnected to the proprietor’s own trading activity.²² This is particularly relevant to globally recognised brands that trade in Nigeria, whose marks may be targets for registration in unrelated classes by opportunistic local applicants.

The protection of well-known marks in Nigeria also engages Nigeria’s obligations under the Paris Convention and TRIPS. Article 6bis of the Paris Convention requires member states to protect well-known marks against confusing registration or use even without local registration. Article 16 of TRIPS extends this to service marks and requires protection against dilution as well as confusion. The TMA’s existing statutory framework for well-known mark protection is widely regarded as inadequate to fully satisfy these international obligations, since it relies on the defensive registration mechanism and on the courts’ willingness to protect unregistered well-known marks through passing off rather than on a standalone well-known marks provision of the kind found in more modern trademark statutes.

The constitutional property dimension is relevant here: a well-known mark represents a valuable commercial asset, and its protection under section 44 of the 1999 Constitution as a species of movable property means that a Nigerian court should take seriously any deprivation of that property through the registration of a confusingly similar mark by a third party who has taken advantage of the territorial gap in the mark’s Nigerian registration.

9. The Outdated Nature of the TMA: A Structural Critique

Nigerian trademark scholars and practitioners have been consistent in identifying the TMA’s age as its fundamental problem. The statute is, in the words of one academic analysis, “arguably unfit for purpose given the significant developments in commerce since the colonial era.”²³

The specific gaps identified in the academic literature include: the absence of a standalone well-known marks provision; inadequate provisions governing the licensing of trademarks and the required degree of quality control by licensors; the absence of any anti-dilution protection for famous marks; the absence of any provision for the registration of sound marks, scent marks, or other non-traditional marks beyond the shapes, packaging, and colour combinations now recognised by the BFA; the outdated opposition and cancellation procedures; and the TMA’s failure to address trademark issues arising in the e-commerce and digital marketplace environment where Nigerian businesses increasingly operate.²⁴

There is legislative movement in the background. A Trademarks, Service Marks, Collective Marks and Trade Names Bill has been in various stages of drafting and review for several years, though it had not been enacted as at the time of writing. This Bill, if enacted, would represent the comprehensive reform that the BFA amendment could not achieve, addressing well-known marks, anti-dilution, non-traditional marks, and digital commerce within a coherent single framework. Students should be aware that the TMA, as amended by the BFA, is the current law but not the settled endpoint of Nigerian trademark reform, and that the deficiencies of the current Act are not matters of detail but of structural inadequacy relative to Nigeria’s international obligations and commercial needs.

10. The Constitutional Dimension: Freedom of Expression and Trademark Monopoly

Section 39 of the 1999 Constitution, which guarantees freedom of expression including the freedom to receive and impart ideas, sits in a genuine tension with trademark law’s grant of exclusive rights over words, symbols, and other communicative elements. A trademark registration gives its proprietor the right to prevent others from using the same or a confusingly similar sign in connection with particular goods or services. In the most extreme formulation of this right, a trademark owner can prevent a competitor from using an ordinary English word, a surname, or even a geographical name, if that word has been registered as a trademark and become distinctive of the owner’s goods.

The constitutional tension is resolved in trademark law primarily through the requirement of distinctiveness as a condition for registration, and through the exceptions to infringement available for descriptive use, comparative advertising, and honest use of one’s own name. These doctrines, which are examined in detail in Trademark Infringement in Nigeria: How Courts Assess Confusion, Similarity and Counterfeiting, are the trademark system’s equivalent of copyright’s fair dealing exceptions: they carve out the space within which the constitutional right to communicate using ordinary language and symbols can be exercised without being trapped by trademark monopolies.

11. Problem Question Framework

When a problem question raises a preliminary issue about whether a trademark right exists, work through this sequence before turning to infringement or passing off.

Identify whether the mark falls within the amended definition of “trade mark” under section 67 TMA as amended by section 69 BFA. Is it a mark used or proposed to be used in relation to goods or services? Does it serve to indicate a connection between those goods or services and a person having the right to use it? Does it take one of the forms the Act recognises: word, device, label, signature, numeral, shape, packaging, combination of colours, or any combination thereof?

Check whether the mark is registered. Section 3 of the TMA provides that no person is entitled to institute proceedings to prevent or recover damages for infringement of an unregistered trade mark.²⁵ An unregistered mark can only be protected through the common law action for passing off, with its distinct requirements. Identify which regime applies before proceeding.

If the mark involves services and was registered before 14 February 2023, flag the BFA transitional controversy: the registration may be challenged on the basis that it was made under a ministerial directive that exceeded the Minister’s powers, and the BFA has no retroactive effect. Advise the client to consider a fresh registration under the new statutory framework.

Identify the territorial scope. The TMA protects registered marks only within Nigeria. A foreign mark not registered in Nigeria cannot invoke the TMA’s statutory infringement provisions against a Nigerian user of the same mark.

Consider whether the mark is well known. A well-known mark may attract additional protection even without local registration, through the defensive registration mechanism, through the Paris Convention obligations that Nigerian courts must consider, and through the common law action for passing off.

12. Common Student Mistakes

Treating a trade name as equivalent to a trade mark. A trade name identifies a business entity; a trade mark identifies the source of specific goods or services. They are different in nature, governed by different statutes, and registered through different bodies. Confusing the two in an examination answer produces imprecise analysis.

Assuming that registration in one trademark class protects the mark across all classes. Trademark registration under the TMA is class-specific. A mark registered in class 30 (coffee, tea, cocoa) does not give the proprietor rights in class 32 (beers, beverages) unless separately registered there.

Ignoring the BFA amendment. An answer on the definition of a trademark that recites only the original section 67 definition, without acknowledging that the BFA has amended it to include services, shapes, packaging, and combinations of colours, is stating incomplete law.

Treating an unregistered mark as having no protection at all. Section 3 of the TMA bars statutory infringement proceedings for unregistered marks, but the common law action for passing off remains available. An unregistered mark has protection; it is just a different form of protection with different elements to prove.

Assuming that a trademark registered abroad is automatically protected in Nigeria. The territoriality principle means it is not. Foreign registration creates no rights in Nigeria without a separate local registration under the TMA, or a Paris Convention priority claim filed within six months of the foreign filing date.

Ignoring the service marks validity controversy. An examination question involving a service business that registered its trademark before February 2023 may be testing whether students know that pre-BFA service mark registrations face transitional validity questions. Giving a confident answer about the validity of such registrations without acknowledging this controversy is overstating the certainty of the current legal position.

13. Quick Reference Table

14. Key Cases

Ferodo Ltd & Anor v. Ibeto Industries Ltd (2004) LPELR-1275 (SC) is the Supreme Court’s leading statement on the nature and purpose of a trademark in Nigerian law. The court described a trademark as what “indicates a connection” between goods and a particular person, grounding the Nigerian judicial understanding of trademark function in the source identification principle. The case involved the Ferodo brake-lining brand and the defendant’s allegedly similar mark, and the court’s analysis of what constitutes a trademark and what the law is designed to protect remains the most authoritative judicial articulation of the foundational trademark concept in Nigerian law.

CPL Industries Limited v. Morrison Industries Plc established that the determination of whether one mark is likely to cause confusion in the course of trade is a matter for the court alone to decide, guided by evidence about how consumers would likely perceive the marks. This principle governs the infringement analysis and is addressed in detail in Trademark Infringement in Nigeria: How Courts Assess Confusion, Similarity and Counterfeiting.

Smithkline Beecham Plc v. Farmex Ltd addressed the limits of trademark registration in relation to generic or scientific names. The court held that the phrase “Milk of Magnesia” was a generic pharmaceutical name that the plaintiff could not monopolise through trademark registration, since it was a name freely used in the medical and pharmaceutical world to describe a well-known compound. The plaintiff’s exclusive rights were confined to their brand name “Phillips,” not the descriptive name “Milk of Magnesia” that any other pharmaceutical manufacturer was entitled to use. The case illustrates the principle that distinctiveness, not descriptive accuracy, is the foundation of trademark rights.

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Footnotes

¹ Trade Marks Act Cap T13 Laws of the Federation of Nigeria 2004; ICLG, ‘Trade Marks Laws and Regulations Report 2026: Nigeria’ (2026), confirming the TMA as the primary Nigerian trademark legislation.

² F.O. Babafemi, Intellectual Property: The Law and Practice of Copyright, Trade Marks, Patents and Industrial Designs in Nigeria (Justinian Books Limited, 2007); I. Okonkwo, ‘Fundamentals of the Nigerian Trade Marks Act and Implications for Foreign Trade Mark Owners’ (ResearchGate, 2025), describing the Nigerian TMA as a replica of the UK Trade Marks Act 1938 and identifying its structural deficiencies.

³ Business Facilitation (Miscellaneous Provisions) Act 2022, Act No. 5 of 2022, signed 14 February 2023.

⁴ Section 69(a), Business Facilitation (Miscellaneous Provisions) Act 2022; Adams & Adams, ‘Nigeria: The Business Facilitation Act 2023 and its Impact on the Nigerian Trade Marks Act’ (May 2023), confirming that the BFA added “services” to the definition of goods in the TMA.

⁵ Section 69(b), Business Facilitation (Miscellaneous Provisions) Act 2022; S.P.A. Ajibade & Co, ‘Analyzing the Impact of the Business Facilitation (Miscellaneous Provisions) Act on the Intellectual Property Industry’ (2023), setting out the new definition verbatim and confirming inclusion of shape, packaging, and combinations of colours.

⁶ ICLG (n 1), listing the TMA, Merchandise Marks Act, Trade Malpractices Act, and Counterfeit and Fake Drugs Act as the primary Nigerian trademark legislation framework.

⁷ Section 67, Trade Marks Act Cap T13 LFN 2004 (original definition before BFA amendment).

⁸ Section 69(b), Business Facilitation (Miscellaneous Provisions) Act 2022.

⁹ Mondaq, ‘Validity of Service Marks Registered Prior to the Amendment of the Trademarks Act’ (June 2023), explaining that the Minister’s 2007 directive expanded trademark classifications to include service classes 35-45.

¹⁰ Ibid, noting that many practitioners questioned whether the Minister’s directive amounted to an amendment of the TMA that only the National Assembly could perform under section 45(1)(b) of the TMA.

¹¹ Adams & Adams (n 4), observing that it is not yet clear whether pre-BFA service mark registrations will be treated as valid and noting that a committee is expected to provide clarity.

¹² Babafemi (n 2) 3, discussing the source identification function of trademarks.

¹³ Ferodo Ltd & Anor v. Ibeto Industries Ltd (2004) LPELR-1275 (SC).

¹⁴ IP II Slide, Faculty of Law, University of Ibadan (course materials uploaded), defining trademark and distinguishing it from trade name.

¹⁵ Ibid.

¹⁶ Paris Convention for the Protection of Industrial Property, Article 6; IP II Slide (n 14), discussing the territorial nature of trademark protection.

¹⁷ Paris Convention for the Protection of Industrial Property 1883 (as revised); Nigeria is a party as a member of the World Trade Organization and through TRIPS Article 2(1) which incorporates Paris Convention obligations.

¹⁸ Sections 1(1) and 1(2), Trade Marks Act Cap T13 LFN 2004.

¹⁹ Section 2(1), Trade Marks Act Cap T13 LFN 2004.

²⁰ Sections 45-46, Trade Marks Act Cap T13 LFN 2004; section 251(1)(f), Constitution of the Federal Republic of Nigeria 1999.

²¹ ICLG (n 1), confirming that the Nice Classification is used for trademark applications in Nigeria.

²² Techhiveadvisory.africa, ‘Understanding Trademark Infringement: Navigating the Nuances of Brand Protection and Trademark Classification’ (2023), describing defensive registration under the TMA as a tool for protecting well-known marks across all classes.

²³ Chris Ogunbanjo LP, ‘Amendment of the Trademarks Act by the Business Facilitation Act 2022’ (June 2023), describing the TMA as “an archaic piece of legislation by all standards and arguably unfit for purpose given the significant developments in commerce since the colonial era.”

²⁴ Okonkwo (n 2), identifying the specific structural gaps in the TMA including no standalone well-known marks provision, inadequate licensing provisions, no anti-dilution protection, and no non-traditional marks framework.

²⁵ Section 3, Trade Marks Act Cap T13 LFN 2004; The Law Kernel, ‘Trademark Protection in Nigeria’ (2024), confirming that by virtue of section 3, a person cannot institute proceedings to prevent or recover damages for trademark infringement if the trademark is not registered.