See discussions, stats, and author profiles for this publication at: https://www.researchgate.

net/publication/331940153

Protection of Geographical Indications in Nigeria: A Legal and Policy Deficit

Preprint · March 2019

DOI: 10.13140/RG.2.2.31752.47368

CITATIONS READS
0 1,271

1 author:

Solomon Gwom
University of Abuja
17 PUBLICATIONS   1 CITATION   

SEE PROFILE

Some of the authors of this publication are also working on these related projects:

A journal article that is co-authored View project

All content following this page was uploaded by Solomon Gwom on 21 March 2019.

The user has requested enhancement of the downloaded file.

Solomon Gwom, Geographical Indications in Nigeria: A Legal and Policy Deficit

PROTECTION OF GEOGRAPHICAL INDICATIONS IN I. INTRODUCTION

NIGERIA: A LEGAL AND POLICY DEFICIT The emergence of geographical indications (GIs) as IP
rights and their introduction into the WTO TRIPS
Solomon Gwom
agreement has resulted in unparalleled recognition of the
intellectual property (IP) right internationally. However,
their protection has been embroiled in many
ABSTRACT controversies and the means and scope of protection
Protection of geographical indications has not only strongly contested, within the broader debate on
become popular around the world, but it is also a viable whether TRIPS has the ability to bring about balanced
intellectual property right that can potentially foster and equitable economic benefits, and equally good
economic development, especially in developing countries. protection for agricultural products such as food and
The potential of GI protection to add value and promote beverages, fish products and handicrafts. Interestingly, in
rural socio-economic development and to create value for a continent like Africa that is so rich in traditional and
local communities through products that are deeply cultural heritage as well as abundant biodiversity coupled
rooted in tradition, culture and geography cannot be with genetic resources, there is likely to be a number of
underestimated, especially by developing countries. This products which could derive a lot of benefit and gain
article explores the state of economic development in from the protection of GIs. Unfortunately, except in
Nigeria and the necessity of GI protection to enhance 1
certain African countries, there has not been a general
economic development. It also examines the concept of satisfactory development and implementation of suis
GIs and existing policies and statutory framework on GI generis legislations on GIs in the African continent. This is
protection in Nigeria. The article finds that, besides section not unconnected with costs and efforts in setting up a
43 of the Trademarks Act of Nigeria which provides for sustainable GI system but also the conflict between
certification marks and other relative laws, no meaningful African and Western countries over the forms which GI
effort has been made by the Nigerian government to enact protection that African countries should adopt. But then,
a suis generis legislation for GI protection. Furthermore, steps taken at the regional level by the African
the article examines existing policy gaps responsible for Intellectual Property Organization (OAPI) and African
poor GI protection and proffers recommendations for regional Intellectual Property Organization (ARIPO) are
improvement and neccesary attitudinal change on part of 2
nothing short of commendable. These efforts have led
the Nigerian government. to the protection of certain agricultural products like
Keywords: geographical indications, Nigeria, protection, Penja pepper and Oku honey from Cameroon, and also
economic development.
1
Notably, countries like Morocco, Kenya and South Africa.
` 2
The Bangui Agreement of 1977 establishing the African Intellectual
Property Organization (OAPI) applies directly in each Member State. Under
the Bangui Agreement (Annex IV), GIs are protected through a sui generis

Solomon Gwom (Nigeria) is Doctor of Intellectual Property Law at the system. The agreement has entrenched a uniform system of protection for
Faculty of Law, University of Abuja, Federal Capital Territory, Abuja. He intellectual property that has now proven suitable for GIs. Similarly, during
holds a Doctorate (PhD) and Master's (LLM.) degree in law from University the 13th Session of the Council of Ministers of ARIPO held in Accra, Ghana
of Abuja and University of Jos, Nigeria respectively. He also teaches on December 1 and 2, 2011, the Council mandated the ARIPO Secretariat to
undergraduate and post graduate Intellectual Property and Competition include Geographical Indications in its overall mandate on intellectual
Law at University of Abuja. His research focus and teaching activities is on Property. It mandated ARIPO Secretariat to work towards the adoption of
Intellectual Property, International Economic Law and Competition Law. He appropriate regional legal framework on geographical Indications and, in
is also one of coordinators of University of Abuja law clinic and the addition, to assist her member states to adopt appropriate national
Intellectual Property Students’ Association. legislations on geographical Indications.
1
 WIPO-WTO Colloquium Papers, 2017

4
Ziama-Macenta coffee from Guinea, among other The history of geographical indications is traced to the
products. period when association between the unique qualities of
Nigeria as a country in the African continent occupies a goods and the geographical place of their production
very strategic position not only in Africa but in the entire became common practice. This practice was evident in
world. It, among other unique characteristics, has the many parts of the world. However, a popular narrative
largest black population in world and stands out as one of today is that of French laws created specifically to protect
Africa’s foremost economic giants. With the growing the regional makers of wines and spirits the Bordeaux
importance of protection of GIs at international level, region of France many years ago. The theory originated in
Nigeria is yet to establish a suis generis legislation on GIs, France many years ago. France has protected its wine
neither has it been introduced into Nigerian legal regions by means of the law on appellations of origin since
5
jurisprudence and economic policy objectives. The only 1919. Another narrative is that of the pre-industrial era in
legislation that bears a resemblance to GI legislation is Britain when competition to earn revenues from the
3
the Trademarks Act. The section acknowledges a mark international trade that was at its developing stage, and it
adapted in relation to any goods to distinguish in the became noticeable that the products of particular regions
course of trade goods certified by any person in respect were more saleable than comparable products from other
of origin, material, mode of manufacture, quality, regions, because of their superior quality. This superior
accuracy or other characteristic from goods not so quality resulted either from natural geographic
certified can be registrable only as a certification trade advantages, such as climate and geology international
mark in respect of those goods in the name, as proprietor reputation of certain goods secured the access of those
thereof, of that person. Although the use of certification products to markets well beyond their place of
6
marks has been successful in the protection of GIs in production. To take advantage of the commercial
other jurisdictions like the United States, it does have attractiveness of these local reputations, merchants began
limitations when compared to broader and redefined suis to brand their goods with marks which designated the
generis legislation on GIs. This situation has placed the place of origin of these products. Soon enough, in order to
status of legislative compliance with GI protection in protect the commercial reputation of these goods, local
Nigeria very inadequate, leaving room for agitations for legislators passed laws to prevent the adulteration of local
reform and enforcement. This research advocates for produce by the addition of inferior introduced goods or
protection of agricultural products and handicrafts in ingredients. These laws punished the adulteration of
Nigeria through a unique suis generis GI legislation, as goods and established systems of marking approved local
opposed to the current trademarks law. It also seeks to goods with marks certifying their quality. An example is
explore Nigeria’s situation on GI protection through the wool marks for cloth, hallmarks, for goods made from
lens of academic criticism and simultaneously adjusting precious metals. Associations also began to spring up in
discussions to the possibilities of reform.
4
Known today commonly with the acronym “GIs” for easy reference.
5
Blakeney, M, The Protection Of Geographical Indications: Law and Practice
II. BRIEF HISTORY AND CONCEPT OF GEOGRAPHICAL (Massachusetts, Edward Elgar Publishing Limited, 2014) 3, 6. Prominent
among these protections were the privilege de la descente and the privilège
INDICATIONS de la barrique. The former excluded non-Bordeaux wines from the
Bordeaux wine market until 11th November of each year. The privilège de la
barrique on the other hand reinforced the commercial advantage of
Bordeaux wines as the only wines entitled to a barrel made of superior
3
Cap T 13 Laws of the Federation of Nigeria, 2004. Section 43 of the Act wood and of specified dimensions, which gave them an advantage for
provides for registration of certification marks. There is no provision for transportation in the merchant vessels of the time.
6
collective marks under the Act. Ibid.
Solomon Gwom, Geographical Indications in Nigeria: A Legal and Policy Deficit

aspects where the reputation of goods was attributable to III. PRESENT STATE OF AGRICULTURE,
skills and technology. They eventually developed service HANDICRAFTS INDUSTRY AND
marks which were placed upon goods produced by their ECONOMIC DEVELOPMENT IN NIGERIA
members.
Geographical indications have become very popular in
A. NIGERIAN AGRICULTURAL PRODUCE
recent times, especially its enormous contributions to
economic development of nations. Generally, the concept Nigeria is roughly twice the size of California and three
comes from the concept of “country of origin” or a 10
times the size of the United Kingdom. This makes it one
regional or sub regional geographic origin, as over time, of the largest countries in the West African region with a
some locations, regions, of countries become synonymous total geographical area of 923,768 square kilometers and
7
with producing high-quality products. Also regarded as an estimated population of over 192 million people
agricultural law, the law of geographical indications has 11
according to recent statistics. The country is bordered to
recently become a popular aspect of intellectual property the south by the Bights of Benin and Biafra, which are on
for trademark professionals because regional the Gulf of Guinea in the Atlantic Ocean. On the west
manufacturers and growers are becoming more Nigeria is bordered by Benin, on the north by Niger, and
sophisticated in protecting their hegemony on identifying on the east by Cameroon. In its extreme northeastern
8
the origin of their goods. There could be confusions corner, Lake Chad separates Nigeria from the country of
arising from proper understanding of the nature and Chad. Nigeria stretches roughly 700 miles from west to
application of both geographical indications and east and 650 miles from south to north.
12

trademarks. They can be better understood in analyzing

literature, court decisions and case law.
9 Owing to the strategic location of Nigeria on the African
continent, it has a highly diversified agro-ecological
condition which makes possible the production of a wide
range of agricultural products. Hence, agriculture, besides
crude oil production, makes up one of the most important
7
Conceptual Analysis of Geographical Indications and their Importance 13
sectors of the economy. The sector is particularly
<http://shodhganga.inflibnet.ac.in/bitstream/10603/14514/10/09_chapter
%202.pdf> (accessed 20 July, 2017). important in terms of its employment generation and its
8
Cookson B and Nathanson N, Geographical Indications, Made in France
and Exported Worldwide August 15,2000 contribution to Gross Domestic Product (GDP) and export
<http://www.inta.org/INTABulletin/Pages/GeographicalIndications,Madein
revenue earnings. Despite Nigeria’s rich agricultural
FranceandExportedWorldwide.aspx>(accessed 20 July,2017).
9
A trademark is defined by WIPO as a sign capable of distinguishing the resource endowment, however, the agricultural sector has
goods or services of one enterprise from those of other enterprises.
Similarly, a GI is a sign used on products that have a specific geographical been growing at a very low rate. Less than 50 percent of
origin and possess qualities or a reputation that are due to that origin. In
the country’s cultivable agricultural land is under
order to function as a GI, a sign must identify a product as originating in a
given place. Trademarks are protected by intellectual property rights. cultivation. Other major problems are price volatilities and
Trademarks and GIs are both intellectual property rights. They are trade
distinctive signs, but there are several differences between them, especially
concerning the legal regime and juridical nature. Articles 22 and 24 of TRIPS
10
provide distinct protections for GIs and Trademarks respectively. However, Falola, T & Heaton, M, A History of Nigeria, (Cambridge: Cambridge
with GIs, GIs and appellations of origin are deemed integral parts of University Press, 2008) 2.
11
indication of source which is type of protection that requires that the Nigeria’s Population <http://www.worldometers.info/world-
product originate in a certain geographical area. Appellations of origin are population/nigeria-population/> (accessed 10 July, 2017).
12
usually geographical indications, but some geographical indications are not Falola, T & Heaton, loc cit.
13
appellations of origin. trademarks and geographical indications are Agricultural production in Nigeria is not well mechanized. Crude methods
therefore not in conflict and can instead be viewed as harmonious tools. are largely employed in food production and at a subsistence level.
3
 WIPO-WTO Colloquium Papers, 2017

production variability, which is widespread not only in of vegetables reveal that they grow well throughout all
Nigeria but in many parts of the African continent. These regions the country. Tree crops such as oil palm have
have caused volatile and spiking food prices, creating better yield in the South-South and South-Eastern regions.
uncertainty and risks for producers, traders and Cocoa stands the high chance of good yield in the
processors, resulting in increased food insecurity for Southwestern region, while rubber yields more in the
14
consumers. South-South region. In contrast, cashew nut and ginger are
commodities traditional to North-Central and North-West
A study was conducted to identify types of agricultural
regions. Livestock production like cattle, mutton, and
commodities in Nigeria by renowned Nigerian research
sheep are better farmed in the northern region, while pork
15
institutions. The study identified 32 commodities in
and fish farming are more prominent in the South-South
which are perceived to have a comparative advantage in 17
region.
the domestic, regional, or world market. The commodities
are classified into five categories, namely staple crops (9 B. NIGERIAN HANDICRAFT S INDUSTRY
commodities), industrial crops (12 commodities), livestock
Nigeria, like other African countries, is a country that is
(5 commodities), fishery (3 commodities) and forestry (five
16 renowned for its crafts and the skills of its craftsmen for
commodities). Furthermore, major regional differences
18
hundreds of years. Among hand-made possessions
were recorded in the returns to investments on
around the world, Nigerian and African handicrafts are
agricultural produce. For root and tubers, cassava gives
considered very unique and innovative. There is no
highest returns in North-Central Nigeria; the South-South,
comprehensive data base of handicraft products currently
South-East, and South-West have decreasing order of
available in Nigeria, but it can be said that the industry is
returns. Yam produce returns are high in North-Central
gaining prominence and great expansion with time.
region. This is followed by South-South region. For cereals,
Designs that are uniquely Nigerian usually reflect Nigerian
rice produce is discovered to be exclusive in North-Central
culture and way of life. Such crafts portray the culture of
region. Maize produce is better promoted in Northwest,
traditional societies in Nigeria and offer a lot of appeal to
North-Central, and South-West. Millet is profitable only in
foreigners, especially those from richer countries who
North-West and North-East regions. Sorghum and
desire to know more about societies through arts and
benniseed yield better in the Northern region. Grain
handicrafts. Therefore, with the available varieties of
legumes groundnuts, soybeans and cowpeas give high
handicrafts in Nigeria and the fact that many countries are
returns in the Northern region. The patterns for cultivation
interested in Nigerian handicrafts, handicraft exporters

14
stand a great chance of earning substantial income
Demeke, M, Kiermeier,M, Sow, M and Antonaci,L, Agriculture and Food
Insecurity Risk Management in Africa: Concepts, Lessons Learned and through exportation of arts and handicrafts. UNESCO
Review Guidelines, Food and Agriculture Organization of the United
Nations,2016 < http://www.fao.org/3/a-i5936e.pdf> (accessed 20
defines artisanal products as “those produced by artisans,
July,2017). either completely by hand, or with the help of hand tools
15
Institutions involved in the study are International Institute of Tropical
Agriculture (IITA) ,University of Ibadan (UI) ,University of Uyo (UNUYO), or even mechanical means, as long as the direct manual
Ahmadu Bello University, Zaria (ABU), University of Maiduguri, UNIMAID,
Federal University of Agriculture, Makurdi and Nigerian Institute for Social
contribution of the artisan remains the most substantial
and Economic Research (NISER). component of the finished product. These are produced
16
Manyong, V.M., A. Ikpi, Olayemi, S. A. Yusuf, R. Omonona, and F.S.
Idachaba, F.S, Agriculture in Nigeria: Identifying Opportunities for
17
Increased Commercialization and Investment, This Research was funded by Ibid.
18
USAID/Nigeria, Implementation was by International Institute of Tropical Jules-Rosette, B, The Messages of Tourist Art: An African Semiotic System
Agriculture , In collaboration with University of Ibadan, November, 2003 < in Comparative Perspective (Springer Science & Business Media,
http://pdf.usaid.gov/pdf_docs/Pnadb847.pdf> (accessed 20 July,2017). 2013)30,70.
Solomon Gwom, Geographical Indications in Nigeria: A Legal and Policy Deficit

without restriction in terms of quantity and using raw In the early 1960s after Nigerian independence from
materials from sustainable resources. The special nature of British colonial rule, the Nigerian government had a very
artisanal products derives from their distinctive features, ambitious economic plan that was forged from a strong
which can be utilitarian, aesthetic, artistic, creative, administrative foundation. In the industrial space, foreign
culturally attached, decorative, functional, traditional, companies then invested in new factories and enterprises
19
religiously and socially symbolic and significant." in commercially developed areas like Lagos, Kano and Port
Harcourt. It is also on record that British holdings in
The Nigerian handicraft industry has great potentials and is
Nigerian trade was in decline, the UK still held just over
capable of significantly contributing to the GDP of Nigeria.
half the stock of foreign investment in 1967, and foreign
The increasing demand for Nigerian handicrafts in foreign 21
capital still dominated large-scale manufacture. In 1963
markets has made foreign trade in handicrafts very
it was estimated that the structure of equity in large-scale
lucrative. Many traditional handicrafts can be seen in other
manufacture was 10 percent private Nigerian, 68 percent
countries around the world. Other types of African
private foreign, 3% federal government, and 19% regional
handicrafts, like leather and skin products, are today 22
governments. During this period also, agriculture was the
enjoying increasing demand in parts of Europe and in Asia.
mainstay of the Nigerian economy. Additionally, about 70
Nigerian hand-made men’s leather shoes are popular in
percent of Nigeria's labour force was employed in the
countries France, while in Thailand, Belgium, Sweden, 23
agricultural sector. This trend was sustained until
Germany and Pakistan, trade on wood carvings is also now
military rule was entrenched in Nigerian politics in the
very lucrative
early 60s to 1999. Consequently, the agricultural,
industrial and other sectors were neglected by successive

C. ECONOMIC DEVELOPMENT IN NIGERIA military regimes and the country thrived by a mono-

Economic development typically usually involves economy with revenues derived solely from crude oil

improvements in a variety of indicators such as literacy exports. Crude oil was first discovered in commercial

rates, life expectancy and poverty rates.

20
In Nigeria, the quantity in Nigeria in 1956, while actual production started

narrative of economic development in Nigeria is not only in 1958. It became the dominant resource and source of

turbulent but also full of oscillations. Economic Nigerian revenue in the mid-1970s and has since formed

development was actually better in the pre-1960 era; this the on-shore oil exploration accounts for about 65 percent

was before attainment of independence from British of total production and it is found mainly in the swampy

colonial rule. This was further sustained till the post areas of the Niger Delta, while the remaining 35 percent

independence era, particularly with the institution of represents offshore production and involves drilling for oil
24
military dictatorships that lasted for about twenty one in the deep waters of the continental shelf. Thus, since

years. that period the level of dependence on crude oil exports

has risen exponentially.

19
Definition adopted by the UNESCO/ITC Symposium on Crafts and the
International Market: Trade and Customs Codification held in Manila, 6 th -
21
Bourne, R, Nigeria: A New History of A Turbulent Century, (London: Zed
8th October, 1997. Books, 2015) 106.
20 22
Kelikume, M, ‘ Economic Development and Growth in Nigeria,’ DailyTrust Ibid.
Newspaper,12th
23
December, 2015 R.O, Ekundare, An Economic History of Nigeria I860-1960 (London:
<https://www.dailytrust.com.ng/news/saturday-comments/economic- Richard Clay, 1973) 15
24
development-and-growth-in-nigeria/123963.html>accessed 21 July,2017. Ibid 16.
5
 WIPO-WTO Colloquium Papers, 2017

Currently, the situation is not any different; with a great IV. EXISITING LEGAL FRAMEWORKS SIMILAR TO GI
potential for wealth through of agriculture and vast arable PROTECTION IN NIGERIA
land on which most known agricultural crops can be
Currently, Nigeria does not have a suis generis legislation
grown, it was indeed an unwise decision on pat of the
on GIs. Similarly, there is no existing articulated
Nigerian leadership to, over the years, focus solely crude
government policy in place for GIs. However, certain
oil exports at the expense of the technological, agricultural
legislations analogous to GIs or offer an alternative to GI
and other sectors. Today, owing to lack of economic
protection exist. Some of these laws are at different stages
diversification, serious macroeconomic and other
of enactment, and yet to become law. Brief discussions
challenges continue to plague the Nigerian economy. The
shall be made below on these laws.
economy is in a painful recession for the first time in over
fifty years. Gross domestic product (GDP) growth for 2016 A. EXISTING LAWS
is estimated at -1.5%, with a slight recovery expected in
2017.
25
This trend has been largely attributed to Laws under this category are extant laws with binding

corruption, a continued decline in oil prices, foreign force in Nigeria. They are all included in the laws of the

exchange shortages, disruptions in fuel supply and sharp Federation of Nigeria. Besides the trademark Act, these

reduction in oil production, power shortages, and laws are seemingly dormant in terms of enforcement. The

insecurity in some parts of the country, as well as low reason for this is not unconnected with existing weak and

capital budget execution rate. The 2017 outlook is for a corrupt government institutions and also a poor will for

slow economic recovery. Growth is projected at 2.2 enforcement.

percent as economic policy reforms begin to take hold and

(i) THE TRADEMARKS ACT
a coherent set of policies to address the macroeconomic
26
challenges and structural imbalances is implemented. In The major trademark legislation in Nigeria is the Trade
28
this regard, the federal government of Nigeria has Marks Act The Act is of British origin, dating back to the
th
developed a framework in the Nigeria Economic Recovery early 19 century British colonial period in Nigeria. It has
27
and Growth Plan, which spans from 2017 to 2020. The 69 Sections and has not undergone any significant reforms
29
plan focuses on five key areas, namely: improving since its commencement. The Act defines “Trademark”
macroeconomic stability; economic growth and as “except in relation to a certification trade mark, a mark
diversification; improving competitiveness; fostering social used or proposed to be used in relation to goods for the
inclusion; and governance and security. Whether such purpose of indicating, or so as to indicate, a connection in
national plan for economic recovery is achievable is yet to the course of trade between the goods and some person
be seen. Even with priority recently given to the having the right either as proprietor or as registered user
agricultural sector by the Nigerian government ,there to use the mark, whether with or without any indication of
seems to be no clear direction in towards taking advantage the identity of that person, and means, in relation to a
of the benefits of GI protection as no clear policies or laws certification trade mark, a mark registered or deemed to
on GIs have yet been put in place.

25 28
Nigeria Economic Outlook<www.focus- Cap T 13,Laws of the Federation of Nigeria 2004.
29
economics.com/countries/nigeria>accessed 21 July, 2017. Mordi, M, ‘Towards Trademark Law Reform in Nigeria: A Practitioner’s
26
ibid. Note,’ 197,217 <http://www.nials-
27
ibid. nigeria.org/journals/Mark%20Mordi.pdf> accessed 23 July,2017.
Solomon Gwom, Geographical Indications in Nigeria: A Legal and Policy Deficit

30
have been registered under section 43 of this Act.” importance on being perceived as an independent,
Section 43 of the Act makes provision for registration of unbiased standards-setter. The trademark regime may be
31
certification marks. Interestingly, the Act recognizes only preferred if an organization desires ease of administration
certification marks and has no provisions on Collective and greater flexibility and control over use of its mark and
marks. Certification marks are defined as distinctive signs will use the mark itself in connection with a product or
used to indicate compliance with standards and service it offers to third parties. To identify the best
characteristics pre-established by the owner of the mark regime, assess your activities, materials, services and
in respect of origin, materials, mode of manufacture, market, and consider how you and your constituents will
quality, accuracy or other characteristics but are not use the mark.
confined to any membership .They are registered in
(II) MERCHANDISE MARKS ACT
trademarks register and the owner is usually an
independent enterprise, institution, governmental entity, The Merchandise Marks Act was domesticated in Nigeria
etc. that is competent to certify the products 35
from the British in 1955. It is a legislation with 18 sections
32
concerned. This definition is broader than the concept of that relates to fraudulent marks on merchandise or goods,
33
GIs which has been defined above. trade descriptions and trademarks. The Act defines "false
trade description" as “a trade description which is false or
There are existing controversies and confusion as to
misleading in a material respect as regards the goods to
whether a country can rely on either certification mark or
34 which it is applied, and includes every alteration of a trade
GI protection or both. The choice of regime for standards
description, whether by way of addition, effacement, or
organizations becomes a question of practical realities as
otherwise, where that alteration makes the description
well as organizational goals. The certification mark regime
false or misleading in a material respect; and the fact that
may be preferred if the owner organization places great
a trade description is a trade mark, or part of a trade mark,
30
Section 67(1) of the Trademarks Act, Cap T 13,Laws of the Federation of shall not prevent such trade description being a false trade
Nigeria 2004. 36
31
Section 43(1) defines a certification mark as “ a mark adapted in relation description...” . It further defines "goods" as “anything
to any goods to distinguish in the course of trade goods certified by any
which is the subject or trade, manufacture or
person in respect of origin, material, method of manufacture, quality,
accuracy or other characteristic, from goods not so certified shall be merchandise. It also defines other terms like name person,
registrable as a certification trade mark in Part A or the register in respect 37
of those goods in the name, as proprietor thereof, of that person: manufacturer, trade description and trademark. Section
Provided that a mark shall not be so registrable in the name of a person
3 of the Act states where offences as to trademarks and
who carries on a trade in goods of the kind certified…”
32
Certification Mark trade descriptions are committed. The Act, among other
<http://www.wipo.int/sme/en/ip_business/collective_marks/certification_
marks.htm> accessed 24 July, 2017. provisions, further provides for instances of forging trade
33
supra 2,3. 38 39
34 mark, Rules as to evidence, Issue of and proceedings on
Recent Developments at the International Level In the Field of
40
Trademarks, search warrant. The purpose of this legislation is to
<
http://www.wipo.int/edocs/mdocs/sme/en/wipo_wasme_ipr_ge_03/wipo sanction individuals or trade bodies from employing
_wasme_ipr_ge_03_2.pdf> accessed 24 July, 2017 See also
Giulio Enrico Sironi, ‘Protection of Trademarks and Geographic Indications,’
35
<www.ipkey.org/en/ip-law-document/download/1864/2159/23> accessed Commencement part of the Merchandise Marks Act, Cap M 10, Laws of
2 August, 2017 ; Larysa Kushner, Adding Value with Collective Marks, the Federation of Nigeria, 2004
36
Certification Marks and Geographical Indications (WIPO Training of Trainers Section 2.
37
Program on Intellectual Property and Small and Medium Sized Enterprises Ibid.
38
,Warsaw, Poland, 22,25 November 22 to 25, 2010) Section 4.
39
<www.wipo.int/edocs/mdocs/sme/en/wipo_smes_waw_10/wipo_smes_w Section 9.
40
aw_10_ref_theme_05_01.pdf> accessed 2 August, 2017. Section 11.
7
 WIPO-WTO Colloquium Papers, 2017

deceptive practices to take advantage of commercial (c) for the purpose of sale, contract or other
activities. dealing, uses or has in his possession for use, any
weight, measure, weighing instrument or
(III) TRADE (GENERALIZED SYSTEM OF PREFERENCES) ACT
measuring instrument not stamped or marked as

The purpose of this Act is “to appoint the Nigerian required under the Weights and Measures Act or

Customs Service as the certifying authority in Nigeria in any other law in respect of which no certificate

respect of goods exported from Nigeria and intended to of verification is in force; or

benefit under the Generalized System of Preferences of

(d) sells any products by weight or measures in any
the United Nations Conferences on Trade and
41 warehouse, market, store or other public place
Development." The Act has 7 sections. Basic Items of
and refuses to weigh or measure the product in
legislation in the sections include appointment of
42 the presence of the person to whom the product
certifying authority, verification of application and issue
43 was delivered when requested to do so by that
of certificate, power to require supply of further
44 person; or
information, regulations made by the Minister of Trade
45 46
and Investment t and the offences section.
(e) with intent to defraud, alters any weight,

(IV) TRADE MALPRACTICES (MISCELLANEOUS OFFENCES) measure, weighing instrument or measuring

ACT instrument stamped or marked pursuant to the

Weights and Measures Act or uses in any sale,
labels, packages, sells, offers for sale or advertises any contract or other dealing, any such altered
product in a manner that is false or misleading or weight, measure, weighing instrument or
is likely to create a wrong impression as to its measuring instrument;
quality, character, brand name, value,
composition, merit or safety; or

(b) for the purpose of sale, contract or other

dealing, uses or has in his possession for use any
weight, measure, weighing instrument or
measuring instrument which is false or unjust; or
B PROPOSED LEGISLATIONS

(I) THE NIGERIAN INTELLECTUAL PROPERTY

41
Commencement part of the Trade (Generalized System of Preferences)
Act, T 11, Laws of the Federation of Nigeria, 2004. The was enacted after COMMISSION (NIPCOM) BILL
the 1968 United Nations Conference on Trade and Development (UNCTAD
Conference) which recommended the creation of a Generalized System of
The Nigerian Intellectual Property Commission (NIPCOM)
Tariff Preferences under which industrialized countries would grant
autonomous trade preferences to all developing countries. Thus, in 1971, Bill was one of the proposed bills meant to be passed into
the GATT Contracting Parties unanimously adopted the enabling clause
which created the legal framework for the Generalized System of Tariff law at the National Assembly or the Legislative chambers
Preferences, and authorizing developed countries to establish individual 47
in 2012. The Nigerian government approved the
Generalized Schemes of Tariff Preferences.
42
Section 1.
43
Section 2.
44
Section 3.
45 47
Section 4. Omahi, O.T, “Proactive Legal Reforms through Nigerian Universities and
46
Section 5. Nigerian Bar Association Push: A Case for Intellectual Property Commission
Solomon Gwom, Geographical Indications in Nigeria: A Legal and Policy Deficit

establishment of the Nigerian Intellectual property Hence, there was little or no need to regulate competition
th
Commission on 10 March, 2009.This would be made since key aspects of the economy were monopolized by
48
possible through the passage of the NIPCOM Bill. The government. However, in industries where competitive
Proposed bill is meant to enable legislative reforms in commercial activity existed, specific regulatory bodies
50
Nigerian IP development by unifying the IP system under were set up to encourage healthy competition.
one administration, in accordance with best practices and Currently, the proposed Bill presently before the National
to enable the country harness the benefits IP for economic Assembly combines the regulation of Competition and
development. Fortunately, the bill has pass its second Consumer Protection. The current Bill is for an Act “to
reading at the House of Representatives of the National repeal the Consumer Protection Act and also to establish
49
Assembly of Nigeria but is still yet to be passed into law the Federal Competition and Consumer Protection
This is a major development. However much needs to be Commission and the Competition and Consumer
done in terms of legitimization and implementation. Protection Tribunal for the development and promotion of
fair, efficient and competitive markets in the Nigerian
(II) A BILL FOR AN ACT TO ENCOURAGE COMPETITION economy. It is still pending before the legislative chambers
IN THE ECONOMY BY PROHIBITING RESTRICTIVE in Nigeria.
TRADE PRACTICES, CONTROLLING MONOPOLIES,
CONCENTRATIONS OF ECONOMIC POWER AND
PRICES AND FOR CONNECTED PURPOSES, 2011

Competition in markets promotes efficiency, encourages V. ADVANTAGES OF GI PROTECTION IN NIGERIA

innovation, improves quality, boosts choice, reduces costs,
and leads to lower prices of goods and services. It also Criticisms and commendations alike have trailed efforts to

ensures availability of goods and services in abundance of protect GIs in developing countries, both at national and at
51
acceptable quality at affordable prices. it is also a driving international levels. Nonetheless, in the era of

force for building up the competitiveness of the domestic globalization where so much has been done in a reducing

industry. Businesses that do not face competition at home and removing of barriers between national borders in

are less likely to be globally competitive. Competition order to facilitate the flow of goods, capital, services and

ensures freedom of trade and prevents abuse of market labour in order to realize a global common market, there is

power and thereby promotes economic efficiency. no harm in taking advantage of the benefits of GI
protection to facilitate national growth and economic
Nigeria still does not have a codified set of laws on development. Being an underdeveloped nation, Nigeria
competition in the marketplace. The absence of a specific
legislation could be justified by the initial status of
50
Osinowo, T, ‘Competition Law In Nigeria,’ (This Day Newspaper, October
government monopoly over certain commercial 21, 2014) <www.vitaveritasllp.com/competition-law-in-nigeria/> accessed
25, 2017.
enterprises like telecommunications, electricity, etc. 51
Geographical Indications at the Crossroads of Trade, Development, and
Culture
(NIPCOM) Bill,” The Journal of Jurisprudence and Contemporary Issues, Marsha A. Echols, Geographical Indications for Food Products: International
2012 Volume 6, No. 2, 49-60 Legal and Regulatory Perspective(Kluwer Law International, 2008) 307,308.
48
Ebhuomhan, S, ‘FG Replaces NCC with NIPCOM,’ (Abuja10th March 2009) Irene Calboli and Daniel Gervais, Socio-Economic Aspects of Geographical
<http://www.thenigeriabusiness.com/eco264.html> accessed 25 July,2017. Indications,
49
The second reading took place on the floor of the National Assembly on <http://www.wipo.int/edocs/mdocs/geoind/en/wipo_geo_bud_15/wipo_geo
19th January, 2017. _bud_15_9.pdf> accessed 14 ,2017.
9
 WIPO-WTO Colloquium Papers, 2017

can reap the under mentioned advantages of GI social networks, provide economic sustainability and
protection. GIs have become an important intellectual produce benefits such as enhanced incomes for producers,
Asset for agricultural development. It is also a powerful creation of employment and in turn improvement in the
marketing tool for agricultural producers for creating quality of life thereby providing the impetus for a more
54
wealth. More so, It offers the consumers the assurance of dynamic economy and overall development.
product authenticity and quality as well as guarantees
VI. CHALLENGES OF GI PROTECTION, LEGAL GAPS
sustainability and consistency of both the product and
AND THE WAY FORWARD
incomes. Also, it serves as a value addition tool that
grants the producers bargaining power in the market place Currently, there is no universal mechanism of protecting
and further helps curve a market niche for agricultural GIs which all countries adopt in their national legislations.
52
products. However, the framework for the protection of GIs is
provided by Articles 22 to 24 of the Agreement on Trade-
Other advantages of GIs are that they have notable
Related Aspects of Intellectual Property Rights (TRIPS). It is
developmental characteristics as they uniquely emphasize
quite challenging for all countries to establish a
local production and local characteristics. If properly
predictable multilateral system of rules to protect
harnessed, this leads to higher quality and unique
Intellectual Property (IP) rights, and this challenge
products for consumers available ensured and
53 undermines the objectives of TRIPS. Developing countries
encouraged. Therefore, GIs increase revenues for local
find it cumbersome to establish proper GI protection
producers and satisfy the needs of more conscious and
because of lack of expertise and resources. Consequently,
demanding customers. As already not in doubt, a GI signals
the benefits of GI protection, from many perspectives,
a link not only between a product and its specific place of
seem to favour developed countries more than developing
origin, but also with its unique production methods and
countries. But this does not in any way suggest that
distinguishing qualities. GIs are often a key to higher and
developing countries like Nigeria cannot enjoy the benefits
more stable export earnings, and can make a positive
of GI protection. On the whole, there is a need to critically
contribution to rural development, the preservation of
carry out an assessment, including the cost and benefit
diversity, the quality of products and local jobs.
implications associated with establishing a viable GI
GIs could also enhance regional cooperation, especially in protection system.
Nigeria and other African countries. Such cooperation will One major challenge in setting up a proper GI protection
boost agricultural production and creativity in the system in Nigeria is corruption. The systematic level of
handicrafts industry and ultimately economic corruption in Nigeria has kept it in the doldrums of poor
55
development. The protection of GIs in Africa is also said to infrastructural and institutional decay. There requires
likely to preserve the agri-food system and its incidental concerted efforts and commitment, with a cocktail many
positive factors, to minimise corruption in Nigeria. This will
52
Bernard Gichovi, Gis: The Kenyan Experience with a Special Focus on
54
Kenya Coffee (A workshop on Geographical indications, Kampala-Uganda MacDave Appiah, ‘Geographical Indications: The State of Play in Africa’ 10
10,11 November,2011) November, 2011
<www.ec.europa.eu/agriculture/sites/agriculture/files/events/2011/gi- <www.ec.europa.eu/agriculture/sites/agriculture/files/events/2011/gi-
africa-2011/gichovi_en.pdf> accessed 14 August,2017. africa-2011/appiah_en.pdf>
53 55
Lange, B.D, Geographical Indications In Africa? A Possibility for small- Impact of Corruption on Nigeria's
scale Farmers and Producers In Least-Developed African Countries to Gain Economy<www.pwc.com/ng/en/publications/impact-of-corruption-on-
Access to Modern Markets, Bachelor Thesis Development Economics nigerias-economy.html>accessed 23 November, 2017. Transparency
Group, 24 <http://edepot.wur.nl/171656>accessed 14 August,2017. International ranks Nigeria 126th out of 176 countries in its 2016 rankings.
53
Falola, T & Heaton, loc cit. See <www.transparency.org/country/NGA> accessed 23 November, 2017.
Solomon Gwom, Geographical Indications in Nigeria: A Legal and Policy Deficit

strengthen existing institutions and make possible an originates from two regions and other challenges. By and
efficient GI system. large, the scope of protection offered by the existing
Insecurity is another major challenge in Nigeria. In recent Trademarks Act in Nigeria to protect GI names is not as
times, Nigeria has witnessed an unprecedented wave of comprehensive as the EU GI system. More so, there will be
crisis and insecurity, each leading to loss of lives and a need for the establishment of an office to cater for
destruction of properties. Keeping peace within the matters bothering on GIS, as Trademarks, Patents and
borders of a country has a direct nexus with GI protection. Designs Registry is already overburden with trademarks,
This is because objects of potential GI protection can patents and design issues.
thrive only in places where there is no insecurity. For
example, acts by terrorist groups like Boko Haram and VII. CONCLUSION
frequent bloody clashes between Fulani Pastoralists and
56 The benefits of Protection of GIs in developing countries
farmers over cattle grazing have significantly affected
cannot be underestimated. A country like Nigeria, with all
food production and the handicrafts industry, particularly
its potentials and strategic position in the African
in affected regions of North Eastern Nigeria. Therefore
continent, can benefit greatly from GI protection with
there is a need for the Nigerian government to pay more
careful planning and pragmatic execution. The entire
attention to the security challenges bedeviling the country.
discussions in this paper point to the fact that exisiting
Additionally, one challenge faced in putting in place GI
legal regime for protecting potential GIs in Nigeria is not
legislation is the type of legislation to be enacted. The
enough is limited as compared to the protection in other
question arises whether the existing Trademarks act be
jurisdictions. This is owing to both inaction on part of the
amended, particularly Section 42, to capture of
Nigerian government or unwillingness to tow the path of
incorporate complete GI protection or an entirely special
proper GI protection. Leanings tilt towards adopting either
law on GIs to be passed into law. This will be an issue for
the suis generis legislation approach or an amendment of
legislators and stakeholders to decide. It obviously will
the existing Trademarks Act to embrace completely
involve painstaking and careful deliberations to which
legislations that favour GI protection. However, serious
approach is best for the country. However, if the extant
challenges currently bedevil the Nigerian nation which
Section 42 of the Trademarks Act is be maintained for the
makes it difficult to properly implement and sustain a
same protective purpose as a suis generis Gi law,
commendable GI system. Such challenges include
challenges to be encountered will include issues of Prior
corruption, insecurity, low technical capacity to implement
Trademark Registrations Where Potential Malawian GI
such a system as well as the financial and administration
producers may be confronted with registered trademarks
costs associated with setting up a GI system.
which contain their GI names in neighboring countries,
difficulty in applying Trademark or Certification Mark on Creating awareness among the large illiterate Nigerian
agricultural products and handicrafts, the hurdle of population is a major key challenge that should be
registration of composite GI names where a product overcome by the Nigerian government if such endeavour
would be successful. Also, getting funds and good capacity
56
Bartolotta, C, ‘Terrorism in Nigeria: the Rise of Boko Haram’
<www.worldpolicy.org/blog/2011/09/19/terrorism-nigeria-rise-boko- building would also be make such establishment
haram> accessed 23 November, 2017. See also Olayoku, P, Trends and
successful. There is also the important step of engaging in
Patterns of Cattle Grazing and Rural Violence in Nigeria (2006 – 2014)
(IFRA-Nigeria Working Papers Series,34, 2014)1,20. wide legal reforms in order conform most laws with

11
 WIPO-WTO Colloquium Papers, 2017

modern GI protections. These, and other inputs, are Blakeney, M, The Protection Of Geographical Indications:
important if Nigeria will succeed in its desire for GI Law and Practice (Massachusetts, Edward Elgar Publishing
protection. Nigeria does stand to benefit such much from Limited, 2014)
GI protection because of its potential to improve
livelihoods of many of its citizens in many ways, including Bartolotta, C, ‘Terrorism in Nigeria: the Rise of Boko
farmers. However, so much will depend on the will of Haram’
government to act genuinely in the interest of national <www.worldpolicy.org/blog/2011/09/19/terrorism-
and economic development. nigeria-rise-boko-haram> accessed 23 November, 2017

Bernard Gichovi, Gis: The Kenyan Experience with a Special

Focus on Kenya Coffee (A workshop on Geographical
indications, Kampala-Uganda 10,11 November,2011)
<www.ec.europa.eu/agriculture/sites/agriculture/files/eve
nts/2011/gi-africa-2011/gichovi_en.pdf> accessed 14
August,2017

Bourne, R, Nigeria: A New History of A Turbulent Century,

(London: Zed Books, 2015)

Conceptual Analysis of Geographical Indications and their

Importance
<http://shodhganga.inflibnet.ac.in/bitstream/10603/1451
4/10/09_chapter%202.pdf> accessed 20 July, 2017.

Cookson B and Nathanson N, ‘Geographical Indications,

Made in France and Exported Worldwide,’
<http://www.inta.org/INTABulletin/Pages/GeographicalIn
dications,MadeinFranceandExportedWorldwide.aspx>acce
ssed 20 July,2017

Certification Mark
<http://www.wipo.int/sme/en/ip_business/collective_mar
ks/certification_marks.htm> accessed 24 July, 2017

Commencement part of the Trade (Generalized System of

Preferences) Act, T 11, Laws of the Federation of Nigeria,
2004. The was enacted after the 1968 United Nations
Conference on Trade and Development (UNCTAD
Conference)
BIBILOGRAPHY
Solomon Gwom, Geographical Indications in Nigeria: A Legal and Policy Deficit

Commencement part of the Merchandise Marks Act, Cap comments/economic-development-and-growth-in-

M 10, Laws of the Federation of Nigeria, 2004 nigeria/123963.html>accessed 21 July,2017

Demeke, M, Kiermeier,M, Sow, M and Antonaci, L, Lange, B.D, Geographical Indications In Africa? A Possibility
‘Agriculture and Food Insecurity Risk Management in for small-scale Farmers and Producers In Least-Developed
Africa: Concepts, Lessons Learned and Review Guidelines, African Countries to Gain Access to Modern Markets,
Food and Agriculture Organization of the United Bachelor Thesis Development Economics Group, 24
Nations,’2016 < http://www.fao.org/3/a-i5936e.pdf> <http://edepot.wur.nl/171656> accessed 14 August,2017
accessed 20 July,2017
Manyong, V.M., A. Ikpi, Olayemi, S. A. Yusuf, R. Omonona,
Ebhuomhan, S, ‘FG Replaces NCC with NIPCOM,’ and F.S. Idachaba, F.S, ‘Agriculture in Nigeria: Identifying
(Abuja10th March 2009) Opportunities for Increased Commercialization and
<http://www.thenigeriabusiness.com/eco264.html> Investment,’( USAID/Nigeria, Implementation was by
accessed 25 July,2017 International Institute of Tropical Agriculture In
collaboration with University of Ibadan, November, 2003)<
Falola, T & Heaton, M, A History of Nigeria, (Cambridge:
http://pdf.usaid.gov/pdf_docs/Pnadb847.pdf> accessed
Cambridge University Press, 2008)
20 July,2017
Nigeria’s Population
Marsha A. Echols, Geographical Indications for Food
<http://www.worldometers.info/world-
Products: International Legal and Regulatory
population/nigeria-population/> accessed 10 July, 2017
Perspective(Kluwer Law International, 2008)

Irene Calboli and Daniel Gervais, Socio-Economic Aspects of

Mordi, M, ‘Towards Trademark Law Reform in Nigeria: A
Geographical Indications,
Practitioner’s Note,’ 197,217 <http://www.nials-
<http://www.wipo.int/edocs/mdocs/geoind/en/wipo_geo_
nigeria.org/journals/Mark%20Mordi.pdf> accessed 23
bud_15/wipo_geo_bud_15_9.pdf> accessed 14 ,2017
July,2017

Impact of Corruption on Nigeria's

Olayoku, P, Trends and Patterns of Cattle Grazing and
Economy<www.pwc.com/ng/en/publications/impact-of-
Rural Violence in Nigeria (2006 – 2014) (IFRA-Nigeria
corruption-on-nigerias-economy.html>accessed 23
Working Papers Series,34, 2014)
November, 2017
Osinowo, T, ‘Competition Law in Nigeria,’ (This Day
Jules-Rosette, B, The Messages of Tourist Art: An African
Newspaper, October 21, 2014)
Semiotic System in Comparative Perspective (Springer
<www.vitaveritasllp.com/competition-law-in-nigeria/>
Science & Business Media, 2013)
accessed 25, 2017

Kelikume, M, ‘ Economic Development and Growth in

Omahi, O.T,’Proactive Legal Reforms through Nigerian
th
Nigeria,’ DailyTrust Newspaper,12 December, 2015
Universities and Nigerian Bar Association Push: A Case for
<https://www.dailytrust.com.ng/news/saturday-
Intellectual Property Commission (NIPCOM) Bill,’ The

13
 WIPO-WTO Colloquium Papers, 2017

Journal of Jurisprudence and Contemporary Issues, 2012

Volume 6, No. 2, 49-60

R.O, Ekundare, An Economic History of Nigeria I860-1960

(London: Richard Clay, 1973)

Trademarks Act, Cap T 13,Laws of the Federation of

Nigeria 2004

Transparency International Ranks

Nigeria<www.transparency.org/country/NGA> accessed
23 November, 2017.

UNESCO/ITC Symposium on Crafts and the International

Market: Trade and Customs Codification held in Manila,
th th
6 -8 October, 1997

View publication stats