TRADEMARK LAW AND MERCHANTABILITY OF CONSUMABLE GOODS IN NIGERIA'

ABSTRACT
This research focuses on the trademark law and the merchantability of consumable goods in Nigeria. The objective of this research is to x-ray the administrative mechanisms that help in the investigation, issues pertaining to the contractual relationship, obligation as title, description, and fitness for purpose, condition for merchantable quality, sale by sample, regulation and control of consumable goods. It goes further to deal in depth with trademark law, its functions, nature, registration, and its historical evolution. The methodology employed is that of a comparative analysis between United States of America and United Kingdom. This research examines the scope, challenges of consumer protection and its effects on consumable goods in Nigeria.
TABLE OF CONTENTS
Title Page - - - - - - - - - - i
Certification - - - - - - - - - - ii
Approval - - - - - - - - - - iii
Dedication - - - - - - - - - - iv
Acknowledgments - - - - - - - - - v
Abstract - - - - - - - - - - vi
Table of Contents - - - - - - - - - vii
Table of Cases - - - - - - - - - xi
Table of Statutes - - - - - - - - - xiv
List of Abbreviations - - - - - - - - - xvi
CHAPTER ONE: INTRODUCTION
1.1 Background to the Study - - - - - - - - 1
1.2 Concept and Meaning of Trade mark - - - - - - 3
CHAPTER TWO: FRAMEWORK OF TRADE MARK
2.1 Historical Evolution of Trade mark - - - - - - 10
2.2 Nature of Trade mark - - - - - - - - 13
2.3 Functions of Trade mark - - - - - - - - 14
2.4 Registration of Trade mark - - - - - - - 16
2.5 Infringement of Trade mark - - - - - - - 20
2.5.1 Trade mark Dilution - - - - - - - - 26
2.5.2 Defenses to Trade mark Infringement - - - - - - 27
2.5.3 Remedies to Trade mark Infringement - - - - - - 28

CHAPTER THREE: MERCHANTABILITY OF CONSUMABLE GOODS
3.1 Merchantability of Consumable Goods - - - - - - 29
3.2 Challenges Hindering Merchantability of Goods in Nigeria - - - 34
3.3 Regulatory Agencies - - - - - - - - 35

CHAPTER FOUR: EFFECTS OF TRADE MARK LAW ON MERCHANTABILITY OF CONSUMER GOODS IN NIGERIA
4.1 Effects of Trade mark Law on Merchantability of Consumer Goods in Nigeria - 41
4.1.1 Its challenges - - - - - - - - - 41
4.1.2 Practical Solution - - - - - - - - - 44
4.2 comparative analyses of trade mark law and merchantability of consumable goods with some other foreign jurisdictions - - - - - - - 44
4.2.1 United Kingdom - - - - - - - - - 45
4.2.2 United States of America - - - - - - - 46
CHAPTER FIVE: CONCLUSION
5.1 Conclusion - - - - - - - - - 47
5.2 Recommendations - - - - - - - - 49
Bibliography - - - - - - - - - - 51
TABLE OF CASES
Akosile V Ogidan (1950) 19 NLR at p 87

Arsenal Football v. Matthew Reed (2002) ECR 1-10273
Bell Sons & Co. v Aka &Anor (1972) 1 ALL NLR (Part1) 33
British Airways plc v Ryanair ltd (2001) ETMR 235
Exxon Corp v. Exxon Insurance Consultants International (1981) 3 All ER 241
Nestle Nihon v SankiShoten Tokyo District Court,May29,1965
Rowland v Dival [1923] 2 KB 500.

Saxleher v Wagner. 16 US 375,30 SCT 298, 54 LED 525 (1910).

Scandecor Development AB vScandecor Marketing AB (2002) FSR 122 at 33
Shieldmark BV vJoost Kist (2004) All ER (EC) 277

United Biscuits (UK) Ltd v. Asda Stores Ltd (1997) RPC 513
TABLE OF STATUTES
Decree No. 15 of 1993
Decree No. 56 of 1971
Decree No. 66 of 1992
Ordinance No. 17 of 1906
Ordinance No. 4 of 1876
The Sale of Goods Act of 1893
The Supreme Court Ordinance, 1914
Trade mark Act Cap 436 LFN 1990
Trade mark Act Cap T13 LFN
Trade marks Act 1965
Trade marks Act Cap 199 1965
Trade Marks Registration Act 1875
Trademark Act 1994 (UK)

LIST OF ABBREVIATIONS

A.C Appeal Court
Art Article
CPC Consumer Protection Council
EC European Courts
ECOWAS Economic Committee of West African States
edn Edition
ER England Law Reports
EU European Union
Ibid Ibidem (same as immediately above)
Inc Incorporation
KB Kings Bench
LFN Laws of the Federation of Nigeria
LTD Limited
N.L.R Nigeria Law Report
NAFDAC National Agency for Food and Drug Administration and Control
NIC National Insurance Commission
NSC Nigerian Standard Council
NWLR Nigerian Weekly Law Reports
SON Standard Organization of Nigeria
UK United Kingdom
USA United States of America
Vol Volume

CHAPTER ONE
INTRODUCTION
1.1 Background to the Study
Marks are a very valuable form of intellectual property because they become associated with quality and consumer expectations in a product or services. Note that for example some goods are synonymous with their trade name: like the soft drink Coca-Cola, Nescafe coffee, Cadbury chocolate and Levi Jeans . Trade Mark is a formally registered symbol identifying the manufacturer or distributor of a product . It is a diverse and familiar feature in both industrial and commercial markets. It has long been used by manufacturers and traders to identify their goods and distinguish them from goods made or sold by others. A trade mark must be used or intended to be used in relation to certain goods or services, a manufacturer may also design the goods in such a way that it is unique or peculiar to him. Usually a manufacturer’s reputation is adjudged by the quality and kinds of goods he produces.In order to easily identify a manufacturer’s goods in the market, he usually has a mark or sign on his goods. He may also design the get-up of the goods in such a way that it is unique or peculiar to him. The sign mark or get-up are usually and generally referred to as the trademarks of the manufacturer or trader. Any consumer or consumer who wants the goods can enter the open market and through the mark sign or get-up recognize the goods of his favourite manufacturer. Hence reputation to a manufacturer is a quality so fundamental that it is hardly quantifiable. Just so as it is difficult to estimate the economic value of the power of symbolism in marketing. Example of symbolism here is also reinforced by the shape of the Coca-Cola bottle, which was designed to prevent the dissipation of the company image resulting from the variety of bottles made.
Consumable goods should be merchantable that is, it should be fit for the purpose for which the consumer intends them to be used for. Merchantability of consumer goods, however have their challenges, as consumers might not really get the quality they desire. This might be as a result of fraud or misrepresentation on the part of the sellers. The Sale of Goods Act of 1893 has certain inputs as to this effect. The sellers could also experience certain hindrances on their own part, which could affect the quality of their goods and service. These could be in form of transport routes, electricity etc. Also certain agencies help to curb the exuberance of these vices. They are agencies like, NAFDAC, SON etc.
Trade mark infringement; most times involve sales of substandard products in the name of marketing symbol of the original producer. This can be adverse both on the consumer and the original producer. The consumer is presented with low quality goods mostly in the black market, while the original producer’s reputation is tainted. But certain agencies exist to help coordinate the market as regards sale of these products. They regulate the flow of substandard goods both from the original producers and otherwise. These are agencies like SON, NAFDAC etc. Merchantability of consumable goods is affected by trade mark infringement as consumers may buy goods in the honest belief that they are buying from the producer whom they intend without knowing that they are in a worst case scenario.
1.2 Concept and Meaning of Trade mark
A trade mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trade mark appears originate from a unique source, and to distinguish its products or services from those of other entities. A trade mark is typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements. There is also a range of non-conventional trade marks comprising marks which do not fall into these standard categories, such as those based on colour, smell, or sound .The term trade mark is also used informally to refer to any distinguishing attribute by which an individual is readily identified, such as the well-known characteristics of celebrities. When a trade mark is used in relation to services rather than products, it may sometimes be called a service mark, particularly in the United States. The essential function of a trade mark is to exclusively identify the commercial source or origin of products or services, such that a trade mark, properly called, indicates source or serves as a badge of origin. In other words, trademarks serve to identify a particular business as the source of goods or services.
Trade mark can be seen as serving two main purposes, first reflecting the fact that a registered trade mark is an item of property, to protect business reputation and goodwill, while it also protect consumers from deception, that is to prevent the buying public from purchasing inferior goods or services in the mistaken belief that they originate from or are provided by another trader.
A trade mark should act as a badge of origin. In the words of Lord Nicholls of Birkenhead in
Scandecor Development AB v Scandecor Marketing AB, the notion that distinctiveness as to business source (the goods of one undertaking) is the essential function of a trade mark today.
The basis of trade marks is to show a connection between undertaking and their goods and services so as to distinguish them from other undertakings has important implications in terms of character merchandising and in relation to memorabilia.
It is imperative to note that the name, image or other mark is unlikely to serve the primary purpose of acting as a badge of origin and consequently, it will not satisfy the basic requirement for registration as a trade mark.
A trade mark is, literally speaking, a mark used in trade. We referred to the dictionary definition of trade mark to mean a distinctive mark through which the products of particular manufacturer or the vendible commodities of particular merchants may be distinguished from those of others.
The definition offered by section 67 of the 1965 Act is of the same effect, albeit obliquely. It reads:
Except in relation to a certification trade mark, a mark used or proposed to be used in relation to goods for the purpose of indicating, or so as to indicate a connection in the course of trade between the goods and some person having the right either as proprietor or as registered user to use the mark, whether with or without any indication of the identity of that person, and means, in relation to a certification trade mark, a mark registered or deemed to have been registered under section 43 of this Act .
In the same section 67, a mark is said to include “a device brand, heading, label, ticket, name signature word, letter, numeral or any combination thereof.”
The definition offered by the Trade marks Act1965 is obscure. It should be simplified to convey the exact meaning of trade marks. In simple language, the section provides as follows:
(a) A trade mark is a mark used or proposed to be used in relation to goods in the course of trade with a view to identifying the goods with a particular trader and no other;
(b) A trade mark is no less so merely because the said mark does not expressly indicate the identity of the person connected to the goods;
(c) A trade mark may be identified with a proprietor or a registered user of the mark;
(d) A certification trade mark is a mark used upon or in connection with the products or services of one or more persons other than the owner of the mark to certify origin, material, method of manufacture, quality, accuracy or other characteristics such as that the labor on the goods was performed by members of a group or organization.
In the field of commerce, it takes a trader or manufacturer a lot of energy, time and resources to acquire a reputation in a particular market. In order to ensure that his goods arc not mistaken for those of his competitors, a trader puts a tag on his goods so that his customers can easily identify his goods. It is this tag that is referred to in legal parlance as a mark or a trade mark. In order to further assure his identity the trader or manufacturer may design the getup of his goods in a peculiar way.
The law of trade marks seeks to protect the interest of a trader with regard to his trade mark by ensuring that a third party does not misappropriate another trader’s trade mark thereby confusing consumers or customers of a particular trader. The philosophy behind this posture of the law is that in order to encourage creativity and growth of the economy, a trader should be provided with a congenial atmosphere which guarantees that his contribution to the economic growth of his community is recognized and respected. Arid that he is given room to enjoy the fruits of his labour without undue interference from competitors or the state. This aspect of the law of trademarks is also called the law against unfair competition.
It is against this background that the law frowns at any trader who decides to reap where he did not sow by using the trade marks of another trader or by designing his trade marks to be misleadingly similar to those of another trader in the same market with a view to confusing consumers of the products.
A trade mark must therefore be clearly identifiable with a particular trader to put it beyond per adventure that the goods to which the trademarks are attached relate to that trader, it is for this reason that the definition of trade marks propounded by Kerly is preferable to that Offered by the 1965 Act. Kerly says thus:
A trade mark is a symbol which is applied or attached to goods offered for sale in the market, so as to distinguish them from similar goods, and to identify them with a particular trader or with his successors as the owners of a particular business, as being made worked upon, imported selected, certified or sold by him or them, or which has been properly registered under the Act as the trade mark of a particular trader
A descriptive approach to the meaning of trademarks was adopted by Blanco White et al. they put it this way:
A mark is not used as a trade mark, and so is not registerable unless it is used to indicate a “connection in the course of trade” between the owner of the mark and his goods. It does not matter what sort of trade connection; manufacturers dealers, importers even people who never own We goods, can all have trade marks In the case of accessories, for instance the maker of the article they are to be used with may apply a trade mark to thorn to show he approves their use with his goods.
Okany’s view is simple. To him, a trade mark can be defined as a “mark used by a trader in the course of trade, to distinguish the goods on which it is applied, from other goods of the same dgescription.”3 Landers and Posner, American writers, encapsulate their definition of trade marks in two sentences, as follows:
To oversimplify somewhat, a trade mark is a word, symbol, or other signifier used to distinguish a good or service produced by one firm from the goods or services of other firms. Thus “Sanka” designates a decaffeinated coffee made by General Foods and “Xerox” the dry copiers made by Xerox Corporation
One striking feature of all the definitions set down above is that trade mark is a matter of identity of a trader vis-a-vis other traders. While Kerly and Blanco White emphasis that this matter of identity must be in the course of trade, others are content with the distinguishing factor of a trade mark. It is therefore important to emphasise that a trade mark is meaningless if it is not used in the course of trade or in relation to goods. Any definition which fails to highlight these features of a trade mark is less than comprehensive. It is, however, our view that to define trade mark in the abstract can hardly convey the exact meaning. It is always better to describe trade mark in relation to factual situations as Landes and Posner did.
As stated above, it is always important to emphasize that trade mark must be used in the course of trade. ‘In the course of trade’ must mean in the course of business of which the goods to which the trade mark is applied is an integral part. This is because a free distribution of an article or goods cannot be in the course of trade.
“In relation to goods” has been interpreted and Contrasted with the old phrase “in connection to with goods” used in older English Trade Marks legislations in the following manner:
The old phrase ‘connected with goods’ seems, prima facie, to be intended to deal with time case where, for physical reasons, the mark cannot be impressed on the goods but is used in such connection as . . , manifest that the mark is used as an indication of the origin of the particular object in connection with which the work is used.

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