NIGERIA – The effect of the Business Facilitation Act 2023 on the Nigerian Trade Marks and Patents and Designs Act

The Business Facilitation (Miscellaneous Provision) Act 2023 (BFA) was promulgated on 14^th of February 2023, which had a causal effect on various laws, including the Nigerian Trade Marks Act 1965.

The BFA amended the definition of “goods” in the Trade Marks Act, to include “services”, thereby expanding the scope of protection under the law and clarifying the previous uncertainty regarding the enforcement of service marks. It is still to be determined whether this addition merely clarifies the concept of ‘goods’ under the 1965 Act or whether the inclusion of ‘services’ will be regarded as an entirely new concept. Should it be regarded as mere clarification, the expectation is that service marks filed before 14 February will be covered by the previous definition of ‘goods’ under the 1965 Act. A committee has been set up to provide guidance of the implementation of the BFA, and to possibly provide clarity on this point.

The Trade Marks Act has also been amended by expanding the definition of trade marks to include shape of goods, packaging and a combination of colours.

In addition, the BFA Act amended the first schedule of the Patents and Designs Act of 2004 by adding new Section 13A, which provides for the issuance of compulsory licences in certain circumstances. In terms of the new provisions, the Minister may stipulate that, for certain patented products and processes declared by the order to be of vital importance for the defence or the economy of Nigeria or for public health, compulsory licences may be granted before the expiration of the period of 4 years from filing or 3 years from grant.

Adams & Adams