By M. O. Idam
To properly address the foregoing issue, it is necessary to first understand the concept of a trademark.”
The Trade Marks Act describes a Mark to include; words, names, signatures, logos, shapes, Colors and such others.
The idea of trademarks is to distinguish and identify goods in the marketplace from others, in order to prevent consumer confusion and protect a business brand from unfair competition.
WHY YOU NEED TO REGISTER A TRADE MARK?
Registration of a trademark provides a business owner with legal protection for the mark, conferring exclusive rights to its use in relation to the registered goods or services. It also strengthens the enforcement of those rights and helps promote consumer trust and confidence in the brand. Therefore, once a mark is registered, it acquires priority legal rights over similar marks.
In Patkun Industries Ltd v. Niger Shoes Manufacturing Co. Ltd (1988) 5 NWLR (Pt. 93) 138, The court held that registration confers an exclusive right to use the mark in respect of the registered goods. Once a mark is registered, others are precluded from using identical or confusingly similar marks. Registration also serves as prima facie evidence of ownership.
Implied Benefits of Trade Mark Registration:
It saves an owner, the heavy burden of proving goodwill, misrepresentation, and damages before recovering in an action against an unauthorized user. Upon registration, good will is presumed. See Reckitt & Colman Products Ltd v. Borden Inc [1990] 1 WLR 491 (the “Jif Lemon” case).
Nevertheless, it is noted that an unregistered trademark is not totally denied of legal protection, provided that certain legal elements can be established by the owner.
An unregistered trademark enjoys, in common law, protection in an action for passing off, provided that the owner of the mark can prove the following : good will, misrepresentation and damages.
The Trade Marks Act, recognizes the common law principle, when it states in section 3 as follows: 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. See Niger Chemists Ltd v. Nigeria Chemists (1961) 1 All NLR 171.
CONCLUSION:
In view of the above, it is safe to say that an unregistered trademark may confer proprietary rights enforceable through the common-law action of passing off, unlike a registered trademark, which enjoys statutory protection by virtue of registration.
M. O. Idam
m.o.idamattorneys@gmail.com
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