NEW COMPANY LAW OF NIGERIA AND RECOGNITION OF WELL-KNOWN TRADEMARKS
Recently, Nigeria passed into law the Companies and Allied Matters Act, 2020 ("CAMA 2020") to replace the old 1990 Act. CAMA 2020 is the primary legislation governing the formation and management of companies in Nigeria. The new law made far reaching provisions easing doing business in the country.
One of the amendments, is the procedure for change of a Company name. Section 30 of the Companies and Allied Matters Act, 2020 in its entirety deals with change of company name, be it voluntarily or involuntarily. Section 30 (3) deals with voluntary change of name while Section 30 (1) (d) deals with involuntary change of name.
The old law in Section 31 (4) vests the Corporate Affairs Commission, CAC, with the powers of changing a company name that is found to conflict with a prior existing trademark. This power is retained in the new law in section 30 (1) (d).
However, Section 852(1)(d) of CAMA 2020 further expanded the scope of protection of trademarks. The section states that an applicant can object to a registered company name, limited liability partnership, limited partnership, business name or incorporated trustees on the ground that it is:
"(a) the same as a name associated with the applicant in which he has goodwill; or (b) sufficiently similar to such a name that its use in Nigeria would be likely to mislead by suggesting a connection between the company, limited liability partnership, limited partnership, business name or incorporated trustee and the applicant”.
Flowing from above, a mandatory change can be initiated by the owner of a prior registered trademark or an Applicant that has a goodwill in Nigeria. This supports the argument that an owner of a well-known trademark not registered but has goodwill in Nigeria can apply to Corporate Affairs Commission, CAC, to mandate the change of a company’s name that conflicts with its trademark.
This new section recognizes the application of TRIPS Agreement and Article 6bis of the Paris convention on well-known trademarks in Nigeria. Nigeria been a signatory to these treaties, is obliged to enforce both treaties, but the treaties cannot be enforced as they have not been domesticated under Nigerian law. Section 12 (1) of the Constitution of the Federal Republic of Nigeria, as amended, states that no treaty between the Federation and other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly.
Section 3 of the Trademarks Act of Nigeria further strengthens this position. It provides that no person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trademark; but nothing in this Act shall be taken to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof.
A trademark symbolizes the goodwill garnered by the owner within a territory which the consuming public recognizes. A Proprietor of an unregistered trademark may be unable to object to the registration of a Company with similar or identical to its well-known mark because the current trademark law does not protect unregistered well-known trademarks.
However, the CAC relying on the powers of section 852(1)(d) may mandate a change of company name although the trademark is not registered in Nigeria.
The new section is indeed a daring provision, that may be hampered by the substantive trademark law and non-enforceability of both the Paris Convention and TRIPPS in Nigeria because of noncompliance with Section 12 of the Constitution.