NIGERIA – The Business Facilitation Act 2023 and its impact on the Nigerian Trade Marks Act

On 14 February 2023 the Business Facilitation (Miscellaneous Provision) Act 2023 (BFA) was signed into law by President Muhammadu Buhari. The Act is aimed at facilitating business operations and promoting the ease of doing business in Nigeria. The BFA made amendments to 21 business facilitation laws and also brought about changes to the Nigerian Trade Marks Act, 1965.

Most noteworthy of the changes is Section 69, which amends the definition of goods as defined in the Trade Marks Act, which now includes “services”, thereby expanding the scope of protection under the law afforded by a trade mark in Nigeria. As a result, the definition of a trade mark was also expanded. This amendment essentially recognises and protects service marks, as a form of trade mark and accords it statutory protection. Effectively, the amendment will mean that referring to a trade mark will now mean that a mark can be used or proposed to be used in relation to goods or services, for the purpose of indicating a connection between the goods or services by the person or persons authorised to use such mark.

The practical and legal implications of the amendment are that:

• statutory protection under the Trade Marks Act now extends not only to branded products, but also to branded services;
• it is not yet clear whether the amendment will be regarded as clarifying the concept of “goods” under the 1965 Act, or if it will be viewed as introducing an entirely new concept. If the section is regarded as merely clarifying the concept of “goods” in the 1965 Act, it is anticipated that applications filed in respect of service marks before 14 February 2023 will be covered by the definition.

A committee dedicated to supervising and providing guidance on the implementation of the act has been put in place by the Federal Government, and it is expected that the committee will provide the necessary clarity on the points raised, in due course.