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Addressing Brand Infringement in Nigeria

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By Mercy Kelani

Brand protection should be viewed as a source of profit and not just an expense.

So as to stand out in the crowded marketplace, businesses must be wary of imposters posing as rivals and engaging in deceptive practices. Protecting the wiki brand is essential for all businesses, not only to maintain market integrity but also to secure revenue for owners. Therefore, in Nigeria, brand protection should be viewed as a source of profit rather than just an expense. Imposters in Nigeria often engage in brand infringement through the deceptive practice known as passing off. This legal tort, which originated in common law, aims to safeguard the reputation and goodwill of businesses from unethical tactics and unfair competition by imposters.

In Nigeria, it is understood by the law that business owners have the right to take legal action against anyone trying to unfairly profit from a brand that they have worked hard to establish. Presenting one’s brand, product, or business as someone else’s is deceiving consumers and potentially causing confusion about the true origin of the misrepresented entity. There are various manifestations of passing off. Misleading the public by using a business’ trademark or a similar name to create the impression that two brands or trades are related is a deceptive practice known as trademark infringement.

Passing off occurs when someone sells another company’s products as theirs.

Misleadingly presenting counterfeit goods as belonging to the original owner involves promoting products with a different company’s trademark or a knockoff version. Passing off takes place when someone promotes and sells another company’s products as their own, deceiving customers and unfairly benefiting from the established reputation and credibility of the true owner. The plaintiff’s success in a passing-off action hinges on the ability to establish some facts. Proving misrepresentation involves showing evidence of confusion among current or potential customers due to the defendant mimicking the plaintiff’s name, packaging, or labelling.

This imitation can cause present or future confusion for consumers, leading to potential legal issues for the defendant. To bring a passing off claim, the plaintiff must demonstrate that their business has developed a positive reputation or goodwill that distinguishes their product or service as top choice among consumers. The plaintiff has experienced real harm or is at risk of facing harm to their business or reputation. The potential loss of income can be used as a reason to take legal action against the person or entity causing harm.

Determining damages or compensation relies on various factors.

Also, brand owners who feel wronged have several options for seeking justice. Determining damages or compensation relies on various factors such as market size, impact of false representation, brand reputation, and supporting evidence. The final award amount is determined based on these essential components. Although the primary goal of a passing off claim is to safeguard the reputation and goodwill obtained through the use of a trademark, a trademark infringement claim is aimed at protecting the actual mark. In reality, these two claims are often consolidated into a single lawsuit as distinct legal grounds.

What are the possible defences that an individual who has infringed upon someone else’s rights can use to protect themselves? In the world of product design and packaging, there is no exclusive ownership. If a certain design or packaging is widely used in an industry, it can be used as a defence against accusations of passing off. For example, if a plaintiff’s design or packaging is commonly seen in the industry, the defendant can argue that it is a standard practice within the trade.

Approval from the trademark holder is also protective.

If the name or mark of a product is simply a description, a passing off claim will not be valid. Approval from the trademark holder is also protective. If the plaintiff allows the defendant to manufacture or sell the product through a license or franchise, it can be used as a defence in a passing off lawsuit. It is important to understand that if there is a disagreement between two product distributors, the issue may involve breach of contract instead of passing off.

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