In this interview, Dr Shafiu Adamu Yauri, the Registrar of Trademarks, Commercial Law Department, Federal Ministry of Industry, Trade and Investment, Nigeria, discusses the intellectual property law and policy landscape in Nigeria, with a focus on trademarks.
Flora IP (FI): Nigeria’s intellectual property architecture mainly comprises three instruments. The Trademarks Act of 1965, the Patents and Design Act of 1970 and the Copyright Act of 1988, as amended in 1992 and 1999, and re-codified in 2004. Could you share your perspectives about these?
Shafiu Adamu Yauri (SAY): Indeed, there are three main intellectual property (IP) instruments in Nigeria. The Trademarks Act of 1965, the Patents and Designs Act of 1970 and the Copyright Act of 1988 (as amended). There are, however, other related ancillary laws, dealing with Standards (Standards Organisation of Nigeria/Federal Competition and Consumer Protection Commission), Food and Drugs (National Agency for Food and Drug Administration and Control), Technology Transfer (National Office for Technology Acquisition and Promotion), Border measures and Enforcements (Nigeria Customs Service/Nigeria Police Force). All of these play a key role in the management of their related functions in Nigeria, thus, forming part of the broader IP family.
The Trademarks Act is the oldest post-independence IP law in Nigeria.
The Trademarks Act was enacted in 1965 as a replica of the United Kingdom’s (UK) Trade Marks Act 1938. As detailed as the UK 1938 UK Act was, scholarly opinions conclude that it was poorly drafted and deficient in many respects. This deficiency was wholly inherited by the Nigerian Trademarks Act. Over fifty years after enactment, the Act remains unamended. There is an urgent need for a new law, which will take cognisance of recent developments in international trademark administration and practice, particularly the World Trade Organisation’s Agreement on Trade-Related Aspects of Intellectual Property (WTO TRIPS), the African Continental Free Trade Area (AfCFTA) Agreement and other international and regional IP related instruments.
Principally, TRIPS presents minimum IP standards, which all member countries of WTO have committed to. For Nigeria, like many other (developing and least developed) countries, there are specific aspects of their national laws that require reform or amendments to meet the TRIPS obligations. These, in relation to trademarks, include (a) Definition of protectable subject matter; (b) Recognition and protection of service marks; (c) Protection of well-known marks; (d) Requirements related to non-use in the cause of trade; (d) Parallel imports and exceptions; and (e) Protection periods and Renewals.
Furthermore, the Patents and Designs Act also needs a detailed review. I will be quick to add that the Copyright Act of 1988, has been extensively reviewed or amended in 1992 and 1999, and re-codified in 2004. Nonetheless, it may still require reforms to make Copyrights relevant to the digital era and the other recent developments occurring in this area.
Overall, Nigeria needs IP laws (Trademarks, Patents and Designs and Copyright) that are abreast of the recent international and regional developments in the IP system. In specific terms, it needs to address all the areas highlighted above in a manner that will clearly show that the country is in substantial conformity with its TRIPS obligations.
FI: Nigeria is a founding member of the World Trade Organisation. However, it has not fully ratified the Agreement on Trade-Related Aspects of Intellectual Property Rights. Why is this so and how can Nigeria fully ratify TRIPS?
SAY: My answer here will focus on trademarks. I submit that Nigeria’s compliance with TRIPS is varied. Service marks are protected in compliance with TRIPS. The protection of well-known marks and whether ‘use’ is required for trademarks need to be revisited. For example, a system could be introduced to determine ‘use’ of trademarks to clarify or expand section 18 of the Trademarks Act.
Parallel imports and exhaustion of right are concepts that make the flow of trade easier. The lack of clarity of these concepts suggests some form of trade restriction. Accordingly, these provisions need to be amended to make clear provision for this exception. One position that is consistent among Nigerian scholars is that IP amendments (including trademarks) should consider the domestic contexts in the country to ensure that the revised laws are fit for purpose.
FI: There is an increased interest in intellectual property rights in Nigeria following the opening of the World Intellectual Property Organisation Nigeria Office in January 2020. How does the Commercial Law Department of the Federal Ministry of Industry, Trade and Investment interact with the WIPO Nigeria Office? What changes to the trademarks landscape in Nigeria would you anticipate as a result of the WIPO Nigeria Office?
SAY: Since trademarks are crucial to the promotion of trade and economic development, and Nigeria happens to be one of the strong regional hubs of trade in Africa being the continent’s biggest economy, it is no surprise that it has attracted the world’s IP governing body. Abuja, Nigeria hosts one of the only two World Intellectual Property Office’s (WIPO) External Offices in Africa, the other is hosted in Algiers, Algeria.
Another noteworthy point is that Africa, in general, and Nigeria, in particular, faces an enormous challenge of industrialisation and employment creation given the significant population growth. The African Development Bank (AfDB) estimates that youth unemployment is twice as high as that of adults and that young people account for approximately 60 per cent of the Continent’s jobless population. The problem is only set to become more acute given estimates that some 12 million young people on the Continent enter the job market each year.
If you juxtapose the recent population growth on the continent and the attempts to create a common African market through the AfCFTA Agreement, then you can clearly see the need for the new WIPO External Office in Nigeria to hit the ground running.
All the IP Offices in Nigeria have indeed welcomed the WIPO Nigeria Office. We are building closer collaborations and relationships.
FI: The African Continental Free Trade Area Agreement was signed on 21 March 2018 and entered into force on 30 May 2019. Intellectual Property is scheduled for Phase II Negotiations of the AfCFTA Agreement. It is expected that the sub-regional intellectual property organisations will play a significant role in the AfCFTA’s IP Protocol. Although Nigeria is a member of the African Union, it is not a party to either the African Intellectual Property Organisation or the African Regional Intellectual Property Organisation. Meanwhile, the proposed Pan African Intellectual Property Organisation is not yet in force. How would Nigeria engage with the IP Protocol of the AfCFTA considering its non-membership of the sub-regional intergovernmental organisations?
SAY: As I have always maintained, it is in the strategic interest of Africa that it should and ought to have a single Africa-wide regional organisation. Africa needs to speak with one voice, in unity as one body, to negotiate IP issues. With the signing of AfCFTA and the growing interest of AU members in IP, it is hoped that the current fragmentation and proliferation of sub-regional IP organisations on the continent will be addressed. When that happens, you will see Nigeria playing its legitimate leadership role in IP, as expected!
FI: Please share your final thoughts on intellectual property law, policy, and practice in Nigeria.
SAY: The importance of having a national IP policy and strategy for nation like Nigeria can not be over emphasised. The idea is intended to develop better coordination and consultation between all the IP and IP related ministries, departments and agencies to maximise the full potential and benefits of IP in the country. This is in accordance with global best practice, where countries craft national IP policies to give direction on how best to utilise, protect and enforce IP rights in their economies.
On a general note, concerning Nigeria’s compliance with TRIPS, I dare say that the Country is in many ways TRIPS compliant. However, the WTO and TRIPS provisions are fundamental to all economies in the world. It is, therefore, vital to assess its effects in Nigeria. Effective compliance ought to enable the formulation of laws that enhance sustainable social and economic development.
As highlighted earlier, since TRIPS presents a declaration of the minimum IP standards, compliance should vary from country to country, in line with national needs, priorities and levels of development.
