Impact of covid-19 lockdown on trademark practice in Nigeria
- On 30 March 2020 Nigeria’s president announced a lockdown of the country’s main cities due to the covid-19 pandemic
- Although applicants are still able to file trademark applications online, applications cannot progress further
- Searches and trademark prosecution are now unavailable, and opposition proceedings have also been affected
On 30 March 2020 the president of the Federal Republic of Nigeria announced a lockdown of the country’s main cities due to the covid-19 pandemic. The order was extended by another two weeks on 13 April 2020 and is likely will be extended by a further two weeks. The Federal Capital Territory, Abuja - a hub of IP practice in Nigeria - has since been in total lockdown.
State of play
Nigeria, a developing country, adopted an online filing system for trademarks and related matters in 2012. While still adjusting to this system, applicants have found that filing trademark applications was difficult during the lockdown, as the registry had not carried out any proper planning or taken any preparative measures.
Although applicants are still able to file trademark applications online during this period, applications will not progress further, as all other aspects of the process are still conducted manually at the registry. As such, applications will remain unattended until the end of the lockdown, leaving applicants in limbo.
In addition, searches and trademark prosecution are now unavailable, as these cannot be conducted online. It is inevitable that the registry’s lack of action and failure to give further insight on the situation will result in additional backlog at an already-congested registry.
Trademarks opposition proceedings have also been affected. Rule 48 of the Nigeria Trademark Regulations provides that any person may file a notice of opposition within two months of the date of publication of the application in the Trademarks Journal. The last journal was published on 28 February 2020. As such, interested parties had until 28 April 2020 to file a notice of opposition. However, the filing of such notices is not possible during the lockdown. Although the registry released a notice that all opposition deadlines will be extended due to the lockdown, this created another problem: can the Trademark Rules be amended by a mere notice? This will be another source of controversy for the registry in the post-covid-19 era.
Applicants are still filing trademarks and other IP rights without knowing whether these applications will be accepted for registration - leaving such rights vulnerable and unprotected in Nigeria.
In addition, the lockdown may cause issues with the first-to-file rule in Nigeria, as trademarks filed on an earlier date may lose their priority to more recently-filed trademarks. This will cause significant issues during the examination phase. Therefore, the registry should take steps to address this situation and avoid exposing trademarks to abuse in the country. The pre-online filing era in Nigeria was blighted by delays, backlogs, unaccountability, loss of applications and lack of proper records.
The registry is yet to deal with the backlog occasioned during that era, so compounding it further might be too much to handle. As such, the registry should implement measures to ensure that trademark applications and prosecution are dealt with electronically during the lockdown to avoid chaos post-covid-19.
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