First was the was the very well attended and received seminar in Lagos titled “Wither Nigerian IP in the 21st Century” hosted by Intellectual Property Committee of the Nigerian Bar Association-Section on Business Law (NBA-SBL) chaired by our Principal Partner and Group Head, Mr. Afam Nwokedi. Read more
A Non-resident is liable to taxation on income derived or received from Nigeria. Nigeria’s tax regime defines a Non-resident individual as a person who derives income but is not domiciled or does not stay for more than 183 days within a twelve months period.
Our team of corporate lawyers reflects our much valued entrepreneurial approach to clients’ needs. Our corporate law team advises on business formation, incorporation, capital markets, mergers and acquisitions, equity issues, corporate reorganisations, general company law, corporate governance and privatisations.
The JTB is more of an advisory “committee” comprising of representatives of the federal government and each of the 36 federating states .
Apart from implementing policy decision as it affects the state tax regime, SBIR is also responsible for the assessment and collection of PAY AS YOU EARN (P.A.Y.E.) and other Personal Income Tax requirements. Pool betting and lottery are imposed and managed by the SBIR. Other taxes collected by SBIR include but are not limited to withholding tax (individual only), capital gains tax (individual only), etc.
Taxes and Levies collected by the Local Government Revenue Committee include but are not limited to:
The Joint State Revenue Committee is in essence a State based committee fashioned along the line of JTB. It comprises of representatives of the State Internal Revenue Services, local government revenue committees and affairs and an observer from the National Revenue Mobilisation, Allocation and Fiscal Commission.
We are fully engaged in alternative dispute resolution and litigation covering varieties of issues in banking, contracts, real estate, international trade and investments, intellectual property, consumer protection, taxation and banking. Our dispute resolution portfolio includes ADR/litigation on contracts, commercial contract, equity distribution, joint venture structure, trademark infringement and/or passing off, real estate recovery, counterfeiting, copyright, piracy, royalty payment, debt recovery, insolvency, corporate dissolution, asset recovery, consumer litigation, Consumer Rights, licensing, distributorship, franchise, personal/corporate tax, and banking.
Our practice forum extends from Administrative Tribunals in intellectual Property matters, to Arbitration and Mediation Panels, Federal and States High Courts, Court of appeal and the Supreme Court.
Indeed, contentious trial and appellate matters have been one of our major strong points and we are very proud of the enviable reputation we have achieved in these areas over the years. Regardless of our strength in this area of practice, our primary objective remains to ensure that disputes involving our clients are efficiently resolved on a cost effective basis and within the shortest possible time frame.
The registration of domain names is handled by the office of the National Information Technology Development Agency (NITDA) the creation of which was approved by the Federal Executive Council in March 2001. NITDA is under the supervision of the Federal Ministry of Science and Technology and its primary mandate is “to ensure the implementation of the National Information Technology (IT) Policy and coordinate and regulate the development and regulation of the Information Technology sector”.
Under the IT policy, Nigeria operates a close domain system under the dot-ng registration title.
Any applicant desirous of registering a domain name is required to file an indemnity bond absolving the registering office from “all cost, fees, expenses that may arise from litigation involving trademark, trade name, service mark, and any other name infringements, or other reason”.
SON as Standards Organisation of Nigeria is generally known was established in 1971 under the enabling Act No. 56 and after three amendments currently operates as Cap 412 Laws of the Federation of Nigeria 1090. The organisation’s governing body is known as the Nigerian Standards Council and they are responsible for formulating the policy thrust under which the organisation is administered.
The aims and objective of SON includes preparation of standards relating to products, measurements, materials and processes; certification of industrial products, amongst others. Under the later aim, a Nigerian Industrial Standards (NIS) was approved to formulate the relevant criteria to ensure that a material, product or procedure is fit for the purpose for which is intended. The Industrial Standard is divided into six categories:
The organisation operates a certification Scheme whereby manufacturers whose products meet the requirement of NIS are issued with permits to use the Certification Mark or the Nigerian “Mark of quality” as issued by SON.
Presently, SON conducts food and chemistry laboratory test, engineering (mechanical, civil and electrical) test, textile and leather test and as the custodian of the National Primary Standards of Measurement in the country, offers instrument calibration facilities to industries, research institutions and government agencies.
In the light of the fact that SON is authorised to conduct periodic preventive inspections in factories and markets to forestall the sale of sub-standard products, often, they are a very effective tool in combating infringements and counterfeiting.
Under the provisions of Sections 14 and 15 of the enabling Act, individuals and corporate bodies are criminally liable if the fail to comply with or undertake certain actions as required under the Act.
NAFDAC deals primarily with food, cosmetics, medical devices and bottled water. It guideline provides that:
No food, cosmetics, medical devices or bottled water shall be manufactured, imported, exported, advertised, sold or distributed unless it has been registered in accordance with the provisions of the enabling law establishing that office
Quite apart from the above, labelling of products is also monitored by NAFDAC. The following minimum requirements must appear on the label:
There are further provisions for labelling of food for special dietary uses.
An applicant for the registration of any product with NAFDAC is required to furnish that office with evidence of an application for the registration of a trade mark bearing the name of the product; in this case, the minimum document required is a notification of acceptance of a trade mark application issued by the Registrar of Trade Marks. A successful applicant for a NAFDAC registration will be issued with a certificate of registration with a validity period of five years. Registration of a product does not automatically confer advertising permit. A separate application and subsequent approval by the Agency shall be required in the product is to be advertised.
NAFDAC is empowered to undertakes periodic inspection of markets, shops and warehouses and if need be they are also empowered to seize and destroy offending products and seal-up premises of offending persons or bodies.
Nigeria’s copyright legislations has certainly made giant stride in it attempts to meet up with international standards and development, of all the arms of intellectual property law, copyright can certainly be said to be the most developed in terms of complying with international treaty obligations. In order to achieve this, the principal Copyright Act of 1988 Cap. 68 which defined its nature as
“An Act to make provisions for the definition, protection, transfer, infringement of and remedy and penalty thereof of the copyright in literary works, musical works, artistic works, cinematograph films, sound recordings, broadcast, and other ancillary matters”
has been subjected to several amendments; the first being in December of 1992 when the Act (Decree as it then was) was amended to include provisions empowering the Council to grant compulsory licenses in accordance with the provisions of the Fourth Schedule to the Act, (See section 30A) and also the inclusion of provisions for the appointment of copyright inspectors (See Section 32A)
Under the Appointment of Copyright Inspectors Notice of 1st January 1997, further amendments to the Act were made wherein provisions were made for the appointment of Design Layout Copyright Inspectors. Further, on the 10th May 1999, the name of the administering agency was changed from Nigeria Copyright Council to Nigeria Copyright Commission. On the substantive aspect of the law, a new section 4A was introduced which provides thus:
4A.
(1) Copyright shall be conferred by this section on every work if –
(a) on the date of its first publication at least one of the authors is-
(b) the work is first published –
(2) Where the question arises as to whether a country is a party to an obligation in a treaty or other international agreement to which Nigeria is also a party, a certificate from the Commission to that effect shall be conclusive proof of that fact”.
Also provisions on the limitation of the right of action, anti-piracy measures, criminal liability in respect of infringement of folklore, expansion of the powers of copyright inspectors and so many others.
Section 1 of the Copyright Act provides that the following shall be eligible for copyright:
Under sub-section (2) of the Act, a literary, musical, or artistic work shall not be eligible for copyright unless- (a) sufficient effort has been expended on making the work to give it an original character; (b) the work has been fixed in any definite medium of expression now known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device. Also artistic work shall not be eligible for copyright, if at the time when the work is made, it is intended by the author to be used as a model or pattern to be multiplied by any industrial process. Interestingly, the Copyright Act also provides that a work shall not be ineligible for copyright by reason only that the making of the work or the doing of any act in relation to the work involved an infringement of copyright in some other work.
Though the Act does not provide for the registration of copyright, in practice the Commission has a “deposit system” which for all intent should fairly appropriate the commencement date of any copyright in dispute.
| Type of work | Date of expiration | |
|---|---|---|
| 1 | Literary, musical or artistic works other than photographs. | Seventy years after the end of the year in which the author dies; in the case of government or a body corporate, seventy years after the end of the year in which the work was first published. |
| 2 | Cinematograph films and photographs. | Fifty years after the end of the year in which the work was first published. |
| 3 | Sound recordings. | Fifty years after the end of the year in which the recording was first made. |
| 4 | Broadcasts. | Fifty years after the end of the year in which the broadcasting first took place. |
The Federal High Court as a court of first instance has exclusive jurisdiction for the trial of offences or disputes arising from copyright matters.
Nigeria is a party to the Madrid Agreement on International Registration of Trademarks and the Nice Agreement on the International Classification of Goods and Services. The laws governing trademark administration and the enforcement of it accruing rights are contained in Cap 436 of the Trade Marks Act (TMA) 1965, and Trade Marks Regulations of 1967 (both provisions have been revised in the Laws of the Federation of Nigeria 1990.
The criminal aspects of some of the issues relating to the breach of trademark rights are codified in the Merchandise Marks Act, Cap.223 Laws of the Federation of Nigeria. Civil issues relating to the beach of trade mark rights are exclusively handled by superior courts . Previously, the general opinion was that the provisions of Section 7(1) c) (ii) of the Federal High Court Act, Cap. 134 Laws of the Federation of Nigeria, 1990 conferred exclusive jurisdiction on the Federal High Court to entertain actions in respect of civil matters “arising from” any enactment relating to trade marks, however, the decisions of the Supreme Court in PATKUM INDUSTRIES LTD. V. NIGER SHOES MANUFACTURE LTD (1985) 5 NWLR (pt. 93) 138 and AYMAN ENTERPRISES LIMITED V. AKUMA INDUSTRIES LIMITED (SC 116/199) holds the view that where any passing off action that does not arise from a registered trademark (infringement of a Federal enactment) is a common law right of which the State high Courts and not the Federal High Court has jurisdiction to entertain.
Under Section 66 of the TMA, a mark is defined as including a device, brand, heading, label, ticket, name, signature, word, letter, numeral, or any combination thereof. Any person claiming to be the proprietor of a trade mark used or proposed to be used can apply for the registration of a trademark. Use is not a requirement for registration of a trade mark , provided that a registered trademark may be taken off the register in respect of any of the goods in respect of which it is registered on the grounds that the trademark was registered without any bona fide intention on the part of the applicant for registration that it should be used in relation to those goods by him, and that there has in fact been no bona fide use of the trademark in relation to those goods by any proprietor thereof for the time being up to the date one month before the date of the application, or
That up to the date one month before the date of the application a continuous period of five years or longer elapsed during which the trademark was a registered trademark and during which there was no bona fide use thereof in relation to those goods by any proprietor thereof for the time being.
An application can be filed by the applicant or his local agent. Where the applicant chooses to file the application directly, he must provide an address for service with. It is advisable that searches be conducted to determine the availability of a trade mark before any application for registration is made. The application form must contain the following details:
a. Name and address of the applicant;
b. List of goods for which the application is sought;
c. Nature of business of the applicant;
d. Representations of the mark sought to be registered;
e. An Authorisation of Agent (Power of Attorney) signed by the applicant and where the applicant is a body corporate, by an officer duly authorised to do so. No legalisation or notarisation of this document is required.
A representation of the proposed trade mark must be affixed to the form accompanied with 20 additional representations of the trademark, and the official filing fee. An application containing a word or words other than in English language shall be endorsed with an exact translation thereof. Convention application(s) must be filed within six months of the date of the home application.
On receiving the application, the Registrar will issue an acknowledgement form to the applicant. The acknowledgement form will contain the trade mark application number (which will be changed when the application is registered) and the date the application was filed. After issuing the acknowledgement form, the application will be subjected to an examination strictly as to it distinctiveness.
Thereafter, the Examiner may object to the registration of the application, or may accept it absolutely or subject to such amendments, modifications, conditions or limitations, if any as he may deem fit. If the Examiner objects, he shall inform the applicant of his objection in writing and unless within two months from the date of receipt of the Examiner’s letter, the applicant applies for a hearing or makes a considered reply in writing to those objections, he shall be deemed to have withdrawn or abandoned his application. In the case of a refusal or conditional acceptance the Registrar shall, if required by the applicant, state in writing the grounds of his decision and the materials used by him in arriving thereat, and the decision shall be subject to appeal to the court.
If the Examiner does not object to the application, he will accept the mark and issue the applicant with a Notification of Acceptance. Thereafter, Registrar shall cause notice of the application as accepted to be published in the Trade Marks Journal. (In some instances the Registrar shall cause notice of the application for Registration of a trade mark to be published in the Trade Marks Journal before acceptance).
Any person may within two months from the date of publication of the application in the Trade Marks Journal give notice to the Registrar of opposition to the registration. Numerous case law decisions have held that on a strict `interpretation of Section 20(3) of the Trade Marks Act, the Registrar has no discretion to extend the period within which to file either the Notice of opposition or a reply by way of a Counter- Statement.
If no objection to the registration is recorded within the specified time, the Registrar is authorised to issue the Certificate of Registration. The initial registration is valid for 7 years and the encircled letter ® may be used to indicate a registered trademark.
The Trade Marks Act provides that on application made in the prescribed manner and within the prescribed period, the Registrar shall renew the registration of a trademark for a period of fourteen years from the date of expiration of the original registration or of the last renewal of registration. Late renewal is permitted upon payment of a penalty fee.
If a new Agent other than the Agent that applied for registration is being instructed to renew a mark, an Authorisation of Agent (Power of Attorney) will be required to enable the new Agent process the application. In all cases, the authorisation requires no legalisation or notarisation.
A registered trademark is assignable and transmissible either in connection with the goodwill of a business or not. It is also assignable and transmissible in respect either of all the goods in respect of which it is registered or was registered, as the case may be, or of some of those goods. Similarly, an unregistered trademark is assignable and transmissible if at the time of the transmission, it is used in the same business as a registered trademark; and is assigned or transmitted at the same time and to the same person as that registered trademark.
Unless an assignment is recorded at the Trademark Registry, a transferees` statutory right to commence an action for infringement will not be recognised by the courts. However, the common law right to institute a passing-off action avails the transferee. An application for assignment must be accompanied with the following:
The Patents and Designs Act of 1971 Cap. 344 is the substantive law governing affairs of patents , while the Patent, while the Patents Rules regulates the procedures adopted at the Patent Registry. Under section 26 Patent and Designs Act, the Jurisdiction to hear and dispose of legal proceedings under the PDA is vested in the Federal High Court and the section also provides that the provisions of the Trade Marks Act applicable to legal proceedings under the Act shall apply with necessary modifications to legal proceedings under the PDA.
Every patent application made shall contain the following:
a petition or request for a patent signed by the applicant or his agent and containing the applicant’s full name and address;
a specification, including a claim or claims in duplicate;
plans and drawings, if any, in duplicate;
where appropriate, a declaration signed by the true inventor requesting that he be mentioned as such in the patent and giving his name and address;
a signed power of attorney or authorisation of agent if the application is made by an agent;
an address for service if the applicant’s address is outside Nigeria; and
the prescribed fee.
Where the applicant seeks to avail himself of a foreign priority in respect of an earlier application made in a country outside Nigeria, he shall append to his application a written declaration showing the date and number of the earlier application, the country in which the earlier application was made, and the name of the applicant who made the earlier application. The applicant will be expected to furnish the Registrar, not more than three months after the making of the application in the initial country with a copy of the earlier application certified correct by the Industrial Property Office (or its equivalent) in the country where the earlier application was made. The principle of Restitutio in intergrum does not apply with respect to priority term in the case of a convention application.
A patent application shall relate to only one invention, but may include in connection with that invention, claims for any number of products or for any number of manufacturing processes for those products, and for any number of applications of those products. It may also include claims for any number of processes, and for the means of working those processes, for the resulting product or products and for the application of those products. Under the provisions of the PDA, the Registrar is only permitted to examine every patent application as to its conformity with certain sections of the Act, such examination being in essence formal in nature. There is no provision in the Act on the substantive examination of a patent application.
Every patent shall lapse at the end of the twentieth year from the date of the filing of the relevant patent application. A patent shall also lapse if the prescribed annual fees are not duly paid in respect of it, provided that a grace period of six (6) months shall be allowed for the payment of the fees; and if the fees and the prescribed surcharge are paid within that period, the patent shall continue as if the fees had been duly paid.
Our commercial law practice covers joint ventures, agency, and commodities. We assist our clients to develop transaction strategy and structure, and to document their transactions.