Nigeria’s IPR criminal enforcement regime is more robust in the area of copyright infringement than in the infringement of the other forms of intellectual property like trade marks, inventions and industrial designs, which all have very limited provisions for penal enforcement. 

The police, the Economic and Financial Crimes Commission, the Customs Service, the Federal Competition and Consumer Protection Commission and the National Agency for Food and Drug Administration and Control are some of the institutions empowered to prosecute IP theft, the importation or sale of counterfeit goods, false or misleading advertising and other trade malpractices under various enactments such as the Merchandise Marks Act, the Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Act, the Trade Malpractices (Miscellaneous Offences) Act, and so on.

The Copyright Act also created various copyright offences and established a body known as the Nigerian Copyright Commission (NCC), a government agency, which is vested with the power to administer, regulate and enforce the copyright laws, including the power to carry out criminal prosecutions of copyright infringers. To fulfil this role, the NCC appoints Copyright Officers who are in turn empowered, without a search warrant, to raid and seal up buildings or premises which they reasonably believe are being used for any activity which is an infringement of copyright. The Officers have the powers to arrest, seize and detain any infringing copy, contrivance, material and equipment used or suspected to be used in committing the offence of copyright infringement.

A person is guilty of a copyright offence if they make or cause to be made for sale, hire or for the purposes of trade or business any infringing copy of a work in which copyright subsists. An infringer is liable on conviction to a fine of at least NGN 10,000 for every copy, or imprisonment for a term of at least three years, or both.

The laws or intellectual property types that are often the subject matter for criminal proceedings are categorised as follows:

• Trade marks. The offences for false trademark description and forgery of trade marks are criminalised under the Merchandise Marks Act. The Trade Malpractices (Miscellaneous Offences) Act, however, criminalises the act of offering for sale or advertisement of a product in a manner that is false or misleading as to create a wrong impression of quality, character, brand name, composition, merit or safety. Further to this, the Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Act also criminalises unregistered products and the sale/distribution of adulterated products/counterfeit products with the original brand owner’s packaging. 

• Copyright works. These are covered under several statutes including the Copyright Act, the Nigerian Customs Service Act and the Economic and Financial Crimes Act, which treats the theft of intellectual property and piracy as an economic and financial crime.

Trade marks and trade descriptions offences exist under the Merchandise Marks Act, which prohibits the forgery of trade marks as well as use of a trade mark or mark or trade description in any manner calculated to lead to the belief that the goods in connection with which it is used are designated or described by that trade mark or mark or trade description. 

The offence of false and misleading labelling, packaging, sale or advertising of products in a manner that is likely to create a wrong impression as to brand name, value, composition, etc. of the goods constitutes a criminal offence under the Trade Malpractices (Miscellaneous Offences) Act: 

• Burden of proof: the onus of proving the offence is on the prosecuting authority, the Police or National Agency for Food and Drug Administration and Control (NAFDAC).

• Penalties: any person convicted is liable to a fine of not less than NGN 50,000. Where the offence is committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, any such director, manager, secretary or other similar officer, as the case may be, as well as the body corporate, shall be deemed to be guilty of that offence, and shall be liable to be proceeded against and punished as stated above. 

• Disposition of the goods at issue: part of the penal sanctions is seizure and forfeiture of counterfeit, adulterated, banned or fake drugs or unwholesome processed food products to the Federal Government.

Two groups of offences existing under the Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Act are offences under sections 1 and 2 of that Act: section 1 offences include manufacture, importation, sale, distribution or being in possession of counterfeit, adulterated, or fake drugs and unwholesome processed food products particularly where the products are the subject of trade secret, trade mark, patent or design protection. Section 2 offences include hawking or sale or display for sale of such fake drugs and unwholesome processed foods in any place not duly licensed or registered by the appropriate authority, including markets, kiosks, motor parks, roadside stalls or on any buses, ferries or any other means of transportation:

• Penalties: while a section 1 offence attracts a fine not exceeding NGN 500,000 or imprisonment for a term of not less than five years or more than 15 years or to both, a section 2 offence is punishable on conviction with a fine not exceeding NGN 500,000, or imprisonment for a term of not less than two years, or both. Where the offender under either section of this Act is a body corporate, every person who at the time of the commission of the offence was a proprietor, director, general manager, secretary or other similar officer, servant or agent of the body corporate (or a person purporting to act in any such capacity), he, as well as the body corporate, shall be deemed to be guilty of the offence and may be proceeded against and punished accordingly.

Intentionally taking or making use of a name, business name, trade mark, domain name or other word or phrase registered, owned or in use by any individual, body corporate or belonging to either the Federal, State or Local Governments in Nigeria, on the internet or any other computer network, without authority or right, and for the purpose of interfering with their use by the owner, registrant or legitimate prior user, constitutes an offence of cybersquatting under the Cybercrimes (Prohibition, Prevention, Etc.) Act 2015. 

For the purposes of the Act, ‘cybersquatting’ is defined in section 58 as the acquisition of a domain name over the internet in bad faith to profit, mislead, destroy reputation, and deprive others from registering the same, provided such a domain name is similar, identical or confusingly similar to an existing registered trade mark at the time of the domain name registration; or identical or in any way similar with the name of a person other than the registrant, in case of a personal name, and acquired without right or with intellectual property interests in it: 

• Burden of proof: the onus of proving the offence is on the police or other prosecuting agencies. In Julius v. Federal Republic of Nigeria (2021) LPELR-54201(CA) pages 29–30, paragraphs C–D it was held that the prosecution therein was expected to discharge the following burden, in order to succeed: (a) that the defendant intentionally took or made use of a name, business name, trade mark, or domain name, which is registered, owned or in use by an individual, body corporate or belonging to either the Federal, State or Local Government in Nigeria on the internet or any other computer network without authorisation or right; and (b) that the defendant did the act described in the foregoing sub-paragraph for the purpose of interfering with its or their use by the owner or registrant or legitimate prior user as the case may be.

• Penalties: an offender is liable on conviction to imprisonment for a term of not more than two years, or a fine of not more than NGN 5,000,000, or to both fine and imprisonment. 

• Expected involvement of the rights holder in the criminal process: the involvement of the victim of a criminal offence under Nigerian criminal justice system is, in general, that of a complainant and witness. There is now a provision in the Administration Criminal Justice Act (ACJA) 2015 which appears to have introduced restorative justice in the criminal process. Section 270(12) and (13) of the ACJA permits the forfeiture of the proceeds of a crime and transferring and vesting the same in the victim of the crime. 

Nigeria does not have specialised courts that deal with intellectual property related matters. However, the Federal High Court of Nigeria is seised of jurisdiction to exclusively hear civil and criminal matters constituted under Federal enactments, including copyrights, patents, industrial designs, trade marks and passing off. 

The laws involved in civil enforcement in Nigeria are as follows:

• Trade Marks Act and Regulations 1965.

• Copyright Act 2023.

• Patents and Designs Act, Cap P2, LFN, 2004.

• Copyright Act.

• Federal High Court Act and Civil Procedure Rules of 2019.

In terms of the framework for civil enforcement, apart from infringement actions for copyright and confidential information, it is registration that gives the right of action for infringement of such major IPRs as copyrights, trade marks, patents and designs. IPRs infringement is actionable in Nigeria at the suit of the proprietor/owner, assignee or an exclusive licensee of the rights concerned. 

The only court involved in civil enforcement is the Federal High Court of Nigeria, as it is the only court exercising exclusive jurisdiction in the place where the infringement occurred.

With regard to available remedies, in any civil action for infringement, the rights owner is entitled to reliefs such as:

• Interim preservatory orders (Anton Piller and Mareva orders).

• Declaration of rights.

• Damages and/or account of profits.

• Injunctions (interim, preservatory or perpetual).

• Delivery-up on oath of infringing copies and equipment.

• Such reliefs as are available in corresponding proceedings in respect of infringement of any other proprietary rights.

When considering the rights of the intellectual property owner, rights holders can best protect themselves and their intellectual properties to be in the best position to utilise available civil remedies as follows:

• Registration at the relevant registry (Trade Marks Registry, Nigerian Copyright Commission, and Patents and Designs Registry).

• Compliance with all regulatory requirements.

• Engaging in active use.

• Engaging in public relations/advertisements.

• Prompt vindication of IPRs.

Available damage/loss of profits remedies to rights holders include:

• Monetary damages. 

• Account for profits.

• Delivery-up of infringing goods as well as offending documents and records where the offending trade mark/trade name has been applied.

• Attachment of property.

In the case of Barewa Pharmaceuticals Ltd v. Federal Republic of Nigeria, decided in 2019 and reported in LPELR-47385(SC) (‘My Pikin Case’), the Nigeria Supreme Court had cause to review a criminal case relating to the act of dealing in counterfeit and fake pharmaceutical products, which is disallowed under the Miscellaneous Offences Act Cap M17, LFN, 2004. In the said case, the appellant was convicted of dealing in a counterfeit teething drug (for babies), which had led to the death of children. The appellant and its directors were sentenced to a seven-year imprisonment and the said conviction was upheld by the Supreme Court.

Whilst there is no categorical statutory prohibition of parallel imports or grey market goods in Nigeria, the provisions of the Standards Organisation of Nigeria Act, Foods and Drugs Act, as well as the Miscellaneous Offences Act Cap M17, LFN, 2004 and the Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Act disallows the distribution of unregistered manufactured products. To this end, the distribution of grey goods in these categories (which are often unregistered) is criminalised. 

The sellers of grey goods are subject to criminal penalties under the provisions of the Standards Organisation of Nigeria Act, Foods and Drugs Act, as well as the Miscellaneous Offences Act Cap M17, LFN, 2004 and the Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Act.

Further, the judicial precedents in Nigeria has laid down the principle that a licensee or a local distributor can approach the court to restrain parallel importation on the grounds that such importation is in breach of his or her contractual right in an agreement with the owner of the trade mark. Courts have now recognised and protected the right of a licensee or proprietor of a mark to the exclusive distribution of its goods in Nigeria. This position was established in the case of Bright Motors Ltd v. Honda Motor Co Ltd (1998) 12 NLWR (Pt. 577) at page 230, and the Honda Place Ltd & Anor v. Globe Motors Holding Ltd & Ors (2005) 8 CLRN 25. The Trial Court (i.e. the Federal High Court) granted interim injunctions to restrain the sale of imported HONDA vehicles (not intended to be sold in Nigeria) in breach of a license agreement. The said case was based on contract. Thus, depending on the circumstances, a combination of these approaches may be explored to stop parallel import of products in Nigeria.

The unique challenges of criminal enforcement include:

• No pre-emptive interim or preservatory relief. 

• The difficulty of getting the security agencies to understand intellectual property matters.

• Delayed judicial actions.

• Lack of a harmonised legal framework guiding different law enforcement agencies.

• Retributive justice without adequate victim compensation.

The challenges of civil enforcement include:

• Protracted infringement action.

• Costly proceedings.

• Not backed by the coercive powers of the government law enforcement agencies.

• Potential compromise of judicial officers.

Counterfeiters in Nigeria are utilising certain new and improved methods, which include:

• Proliferation of e-commerce platforms and technological advancements.

• Devising new methods of breaching border protection.

• Hackers being able to leverage new technology in order to breach cybersecurity measures.

• Production of counterfeits in low quantities to limit their losses in the event that they are caught.

There are a number of potential actions which can be taken in order to combat counterfeiting, for example:

• Strengthening enforcement.

• Public awareness campaigns.

• Capacity-building by providing training and resources to law enforcement.

• Embracing innovative technology such as software, AI, 2D data matrix codes and the like to detect counterfeit products.

• Cooperation, collaboration and capacity among government agencies, law enforcement agencies, industry associations and international organisations to share best practices and intelligence.

• Increased resources for coordinated anti-counterfeiting efforts.

There has been a noticeable recent drift from brick-and-mortar marketing or advertising of counterfeit branded products to e-commerce platforms and social networking websites. In fact, there has been an increase in activities on social media networks over and above that of the e-commerce platforms.

Live video stream promotions and shopping is not common in Nigeria; however, we have noticed a gradual introduction of streams and a degree of audience growth in the past few months. 

Rights holders can issue takedown notices to the proprietors and management of e-commerce platforms to report any case of infringement or possible breach of regulatory requirements. The management of the e-commerce platform has an obligation to take down the offending display or advert of the brands if the information is verified. 

Handlers/operators of digital and e-commerce channels are also served with court orders to desist from promoting an offending/counterfeit product on their platform, and this must be complied with immediately.

The concepts of ‘dupe culture’ and ‘knockoff culture’ have contributed to the rise in counterfeit goods being sold online and/or in physical retail locations. It is apparent that 85% of consumers — especially online shoppers — report that social media impacts their purchase decisions. Whilst dupes share similarities with the original brand even though they do not feature any copied logos or trademarked features, knockoff products, on the other hand, satisfy customers’ desires for a high-end product without the hefty price tag. Both may appear to be legal but are ethically questionable, and both have contributed extensively to the rise of counterfeit products. 

It is obvious that a robust legal framework is essential for effective anti-counterfeiting measures. The need for innovation and creativity in our intellectual property laws cannot be overemphasised. There is every need for a more robust legal framework for effective anti-counterfeiting measures. In some countries in Africa, there are specific anti-counterfeiting laws and dedicated anti-counterfeiting bodies, for example, Kenya’s Anti-Counterfeit Act No. 13 of 2008.

Beyond the already existing Anton Piller order, account for profits, interim injunctions and the like, there are no major enactments, changes or amendments affecting rights holders wanting to take a more financially-focused approach against counterfeiters. However, one salient development in IP legislation is the Business Facilitation Act, 2023. This expanded the definition of goods under the Trade Marks Act to include services, meaning that the definition of ‘trade mark’ now also means a mark used in relation to goods or services. 

Further, the Nigerian Start Up Act, 2022, has been expanded to include certification trade marks. This has recognised the role of IP for startups and also provides that registered IP can be used as sufficient collateral under the Credit Guarantee Scheme. 

The Nigerian Start Up Act further provides that provisions should be made on a startup portal to enable ease of local and international IP registrations for startups, providing startups with assistance in case of legal action on infringement matters. In addition, more trade mark journals have been published, and public awareness regarding the protection of IP rights has increased. 

Finally, to further ease the trade mark registration process, new features are being added to the IPO Nigeria website (including uploading court judgments, filing appeals as well as obtaining acceptance letters).

Social media platforms and e-commerce platforms are often the subjects of Nigeria’s brand protection landscape and strategy. The relevant platforms are as follows:

• Jumia. 

• Konga.

• Jiji.

Customers have continually complained of the prevalence of dupe and knockoff culture whilst trying to complete transactions using these platforms. Other complaints are reduced quality, fake and counterfeit products, delayed delivery, payment difficulty and deceit.

Potential repercussions for third parties engaged in facilitating the sale of counterfeit goods include:

• Regulatory action through the police, regulatory agencies or any relevant law enforcement.

• Seizures of counterfeit, summons of arrest and extraction of undertaking.

• Court order of interim and interlocutory injunction and Mareva and Anton Piller orders.

• Notification of Nigerian Customs.

• Takedown notices.

• Petitions.

• Court action for infringement and passing off.

Nigeria has a specific body of laws/regulations addressing the use of online platforms for the sale of counterfeit products. These include the Cybercrimes (Prohibition, Prevention, etc.) Act and the Nigeria Internet Registration Association (NiRA) Dispute Resolution Policy, the Trade Marks Act and the Copyright Act.

The steps which are generally taken when faced with an online infringer that also has a physical storefront are as follows:

• On-site investigations.

• Cease and desist letters.

• Takedown notices.

The NiRA Dispute Resolution Policy spells out the procedure for the resolution of ccTLD (top level domain) disputes from start to finish, including the procedure for an appeal. NiRA is responsible for these procedures, which include NiRA investigating all complaints on the basis of whether there has been a breach of NiRA policy, not on the basis of whether the complainant has a better claim to the domain name, or whether the complainant’s rights in the domain name have been infringed. If the desired outcome is transfer of the domain name to the complainant, then the complainant should consider lodging a complaint under the NiRA Dispute Resolution Policy or taking legal action directly against the registrant. 

If the complaint is upheld, NiRA may take one or more of the following actions: 

• instruct the registrar of record to ‘policy delete’ the domain name(s) in question; 

• instruct the registrar of record to correct the registrant details of the domain name(s) in question; or 

• in the case of an unauthorised transfer, instruct the registry to reverse the transfer.

There has been an increase in the number of disputes relating to domain names in recent times, and this has led to a spike in matters relating to: 

• website impersonation;

• fraudulent adoption resulting in deceitful and dishonest activities; and 

• hacking.

Clearly, the proliferation of the new gTLDs is having an impact on how issues relating to domain disputes are resolved. As the few cases cited above show, the TLD can impact not only the ‘identical or confusingly similar’ test in a domain name dispute, but also the ‘bad faith’ element.

Surely, future UDRP and URS panels will be faced with even more complex and interesting questions such as: can a TLD benefit a domain name registrant by avoiding a finding of confusing similarity or bad faith — such as if the TLD, when read together with the second-level portion of the domain name, creates a mark that differs significantly from the complainant’s mark; or if the TLD describes goods or services that are unrelated to the complainant?

At the very least, complainants and respondents in domain name disputes should no longer assume that the TLD is irrelevant.

Social media continues to be a critical tool for bad actors in Nigeria. The various platforms’ reach, anonymity, and interactive nature make them an ideal environment for spreading misinformation, inciting violence and facilitating criminal activities.

Examples of social media misuse in Nigeria:

• Spread of misinformation and hate speech: social media has been used to disseminate false information about elections, ethnic groups and religious beliefs, leading to tensions and violence.

• Recruitment and radicalisation: extremist groups have leveraged social media to recruit new members, spread propaganda and incite hatred against specific groups.

• Cybercrime: platforms are used for phishing scams, identity theft and online fraud.

• Election interference: bad actors have employed social media to manipulate public opinion, spread disinformation and undermine electoral processes.

• Incitement to violence: hate speech and inflammatory content on social media have fuelled ethnic and religious clashes.

While efforts are being made to regulate social media and combat its misuse, the rapid evolution of the platforms continues to pose challenges for law enforcement and policymakers.

Evasion tactics employed by bad actors in Nigeria include:

• Technological evasion:

  • Sophisticated malware: using advanced malware, such as ransomware and spyware, that can bypass traditional security measures.

  • Cryptocurrency: utilising cryptocurrency for financial transactions to obscure the movement of funds.

  • Dark web and anonymous networks: operating on platforms that are difficult to monitor and track.

  • VPN and proxy servers: masking their IP addresses to hide their location.

• Social engineering tactics:

  • Phishing and spear phishing: deceiving individuals into revealing sensitive information.

  • Impersonation: pretending to be legitimate entities to gain trust.

  • Insider threats: exploiting employees or contractors for access to systems.

• Legal and regulatory circumvention:

  • Money laundering: concealing the illegal origins of funds through complex financial transactions.

  • Bribery and corruption: influencing officials to avoid detection or prosecution.

  • Exploiting legal loopholes: taking advantage of gaps in the legal framework.

• Operational security:

  • Cell phone cloning: using cloned SIM cards to avoid detection.

  • Operational security training: equipping members with counter-surveillance techniques.

  • Compartmentalisation: limiting information sharing within the criminal organisation.

These methods often evolve rapidly, making it challenging for law enforcement and security agencies to stay ahead.

There is currently no specific law or regulation that directly regulates AI in Nigeria, although the National Information Technology Development Agency (NITDA) announced in 2022 that it was seeking the contributions of stakeholders to enable the development of the National Artificial Intelligence Policy (NAIP).

In March 2023 the NITDA announced that it had completed the first draft of the NAIP.

Furthermore, the Federal Ministry of Communications, Innovation and Digital Economy (FMCIDE) released a white paper announcing steps to expand on the draft NAIP by developing a comprehensive National Artificial Intelligence Strategy.

Aside from the ongoing draft of National Artificial Intelligence Policy (NAIP) being promulgated by NITDA, there are various laws that do not directly regulate AI but affect the development or use of AI in Nigeria. These include:

• The Cybercrimes (Prohibition, Prevention, etc.) Act, 2015.

• The Nigeria Data Protection Act, 2023.

• The Nigerian Communication Commission Act, 2003.

• The Security and Exchange Commission (SEC) Rules on Robo-Advisory Services.

• The Federal Competition and Consumer Protection Act, 2018.

• The Copyright Act, 2022.

Deepfake technology involves AI techniques referred to as a Generative Adversarial Network, where two artificial neural networks collaborate to produce remarkably realistic images, videos, or sounds.

In Nigeria, there is no substantive legislation regulating the creation and use of deepfakes. However, legal practitioners adopt cross-sectorial laws relating to a client’s brand image. These laws aim at guiding and defending the brand image and guard against harassment, defamation, data protection and copyright infringement.

Cryptocurrency possesses the attributes of both money and securities. Like money, some cryptocurrencies can be used to buy goods and services, while other crypto projects are similar to securities or investment, with the expectation of future profits. Given that there is no legislation prohibiting cryptocurrency, the CBN and other financial regulators have taken steps to regulate cryptocurrencies in Nigeria by issuing several directives or guidance to its regulated entities, including banks and other financial institutions. For instance, the Securities and Exchange Commission (SEC), established by the Investment and Securities Act (ISA), is empowered to, among other things, regulate investments and securities business in Nigeria and register and regulate securities exchanges, capital trade points, futures, options and derivative exchanges, commodity exchanges and any other recognised investment exchange.

Additionally, the Central Bank of Nigeria (CBN) is empowered by the Central Bank of Nigeria Act 2007 (CBN Act) to, among other things, issue legal tender currency in Nigeria and promote a sound financial system in the country. They give financial directives or guidance to its regulated entities, including banks and other financial institutions.

The Nigerian Copyright Act is the principal legislation governing piracy and copyright infringement. 

Piracy occurs when the original work of an author is violated by the illegal reproduction of the creator’s work usually on a commercial scale. Examples of works that are susceptible to piracy according to the Copyright Act are listed below:

• Literary works.

• Musical works.

• Artistic works.

• Cinematographic films.

• Sound recordings.

• Broadcasts.

Site blocking refers to the practice of preventing access to certain websites or online resources by using technical means. This is often done for cybersecurity, and also to prevent pirates from benefiting from or exploiting the work of an author without the latter’s authorisation.

As a result, online piracy continues unabated. It can also be said that Nigeria adopts website blocking to fight digital piracy as records shows that this is effective in driving users from illegal to legal sources of copyrighted material.

The NiRA Dispute Resolution Policy spells out the procedure which may be adopted for addressing issues such as tackling and preventing the hosting of pirated contents on websites.

In Nigeria, there is an increased prevalence of bad actors using QR codes for phishing scams and payment fraud, as well as data theft. Scammers now adopt the use of scanning QR codes as a means to defraud users and carry out identity theft. In fact, the National Information Technology Development Agency (NITDA) recently warned Nigerians of the rise of identity theft by the adoption of a machine-readable code consisting of an array of black and white squares, typically used for storing URLs or other information for reading by a smartphone camera. 

In terms of border enforcement measures, Nigerian Customs’ primary mandate is not combating counterfeiting or the protection or enforcement of IPRs. However, given the adverse effects of piracy and counterfeiting on the economy, the Customs establishing legislation was amended to place ‘all counterfeit/pirated materials or articles’ on the Absolute Prohibition List, thus bringing the fight against piracy and counterfeiting into the remit of Customs.

Customs possesses ex officio powers to police and monitor the borders for any imported goods which it reasonably believes to be infringing IPRs, to suspend the release of such goods and promptly notify the importer and the right owner of the goods. These powers are exercisable in respect of copyright works and products made within or outside Nigeria which, if made or manufactured in Nigeria, would be an infringement of an IPR. Customs thus carry out watch services to detect any possible case of importation of fake of counterfeit products on the Absolute Prohibition List on Schedule 4 to the Customs Act. 

While section 55(2) of the new Nigeria Customs Service Act 2023 provides that goods prohibited under any law or regulation found within the customs territory shall, at first instance, be deemed to have been imported illegally and Customs shall take appropriate enforcement measures in respect of the goods, section 53(1) of the new Copyright Act 2023 makes an elaborate provision for border enforcement of copyright. 

The owner of copyright in a work may give notice in writing to the Director-General of the Nigerian Copyright Commission (NCC), requesting the NCC to notify Customs, during a period of time to be specified in the notice not exceeding five years, to treat as prohibited goods any work in respect of which the rights holder’s copyright has been infringed. 

The Director-General shall, upon receipt of a notice or upon reasonable suspicion that an infringing copyright work is being imported, notify Customs or any other officer in charge of the relevant border of entry, furnishing them with information that may be relevant for the purpose of identifying and intercepting the infringing work which is the subject matter of the notice or suspicion. 

On receipt of the notice, Customs shall intercept and impound the infringing works and shall permit the Director-General or any person acting on their behalf to inspect the impounded works and take custody of the same pending the commencement of any legal proceedings, provided that the inspection shall not be invalidated by the absence of the importer. 

Where an infringing work is so intercepted or impounded, any Customs officer in charge of the border of entry shall notify the importer and the rights holder or their authorised representatives, stating the reasons for the action taken. 

Any work or material so impounded shall not be kept for a period exceeding 10 working days, which may be extended by another 10 working days, within which the rights owner or the NCC shall decide whether or not to initiate any proceedings in accordance with the provisions of the Copyright Act. 

It is submitted that in view of the provisions of section 55(2) of the Nigeria Customs Service Act and Item 3 on the Absolute Prohibition List in Schedule 4 to the Act, the procedure in section 53(1) of the Copyright Act can be adapted and applied mutatis mutandis to the border enforcement of the other species of IPRs.

The rights holder bears the cost of detention, seizure, handling, storage or destruction of the counterfeit products.

Any person giving notice shall be required to undertake to the law enforcement agency or official likely to suffer any damage or loss that may result from any action taken in respect of the seizure, detention or destruction of the counterfeit products, where it is found that the notification of the said law enforcement agency or official ought not to have been made. 

Some of the benefits of the system of IPR enforcement in Nigeria include:

• Stimulating innovation.

• Fostering economic growth.

• Protecting public health and safety in Nigeria.

• Enhancing the country’s global reputation as a reliable and trustworthy business partner.

Some of the downsides of the system of IPR enforcement in Nigeria include:

• Official corruption.

• Rigorous border checks can lead to delays in cargo clearance, impacting trade and increasing costs for importers and exporters.

• A delay in access to affordable goods as strict enforcement can lead to higher prices for consumers, particularly for essential goods like medicines and software.

Over the past few years, resource constraints have slowed the evolution of the system in Nigeria. Capacity building has also been slow, leading to a lack of the necessary expertise to identify counterfeit goods and investigate IPR infringements.

However, with the introduction of the new Nigeria Customs Service Act and the new Copyright Act, the country is on the path to developing and maintaining a robust system through investments in technology, training, and personnel.

It is believed that a more cordial and coordinated relationship will soon evolve between Customs and other law enforcement.

The following information is available through the border enforcement process:

• Product information, including product description, brand name, model number and specifications.

• Packaging details, appearance, markings, labels, etc.

• Origin and manufacturing details, country of origin and manufacturer’s information.

• Import/export documentation: invoices, packing lists and certificates of origin.

• Customs declarations: product value and quantity.

• Trade mark registration details.

• Copyright information, details of copyright notification to NCC.

• Patent information, number and claims.

• Design registration details.

• Evidence of infringement, counterfeit or pirated goods, similarity to protected IP.

• Importer/exporter information, company name, address and contact details.

• Shipment details, quantity, value and mode of transport.

Potential uses of the information include:

• IP enforcement: building cases against infringers; identifying counterfeit networks.

• Market surveillance: monitoring trends in IP infringement.

• Trade data analysis: analysing import/export patterns; identifying potential risks.

• Risk management: developing targeted enforcement strategies.

Information disclosed in the process of enforcement cannot be utilised other than for the purpose for which it was given and cannot be used for other purposes.

The following civil remedies can be obtained against importers caught importing counterfeit products:

• Injunction: a court order prohibiting the importer from further importing, selling, or distributing the counterfeit products.

• Damages: monetary compensation for the losses suffered by the rights holder due to the infringement.

• Account of profits: requiring the importer to account for and pay over the profits made from the sale of the counterfeit products.

• Destruction of counterfeit goods: an order for the destruction of the seized counterfeit products.

The following criminal remedies can be obtained against importers caught importing counterfeit products:

• Prosecution and imprisonment: importers caught importing counterfeit products can be prosecuted and face imprisonment if found guilty.

• Fines: significant financial penalties can be imposed on the importer.

• Forfeiture of goods: the counterfeit products can be forfeited to the government.

The following Customs remedies can be obtained against importers caught importing counterfeit products:

• Seizure of goods: Customs authorities have the power to seize counterfeit goods upon importation.

• Detention of goods: goods suspected of being counterfeit can be detained for further investigation.

• Imposition of duties: Customs authorities can impose additional duties or penalties on counterfeit goods.

It is not unusual for brand owners or their agents to conduct training sessions to enable law enforcement officers and customs identify original products or counterfeit products. Information required at such sessions would often extend to the approved distributor and the likely source of the original products, so that the law enforcement officers are able identify parallel imports or counterfeits coming from unapproved sources.

It is, however, important to limit information on product identification in deserving cases, considering that the counterfeiters are always updating their product packaging as well. Hence it is important to leave some security features/identification features undisclosed. 

The COVID-19 pandemic brought about unprecedented challenges, including:

• Reduced physical inspections of goods and importation documents by Customs.

• Supply chain disruptions.

• Diversion of resources.

• Digital transformation, in that the pandemic accelerated the adoption of digital technologies in customs operations, including electronic data exchange and remote inspections.

• Increased online trade.

Since the containment of the pandemic in Nigeria, there has been no need to maintain any units of personal care equipment and other goods related to the pandemic.

Whilst Nigeria does not have a national intellectual property law enforcement coordination body, it would appear that the existence of several regulators tasked with IP-related enforcement provides trade mark owners with enforcement options. Thus, where there are possible compromises, the trade mark owner is able to mitigate risks associated with enforcement by considering other options. Indeed, the use of a particular enforcement mechanism could also be determined by the market or state or jurisdiction where the offending activity is taking place, hence proper consultation has to occur before an enforcement approach is adopted. 

6.1 How can I protect my brand from counterfeiting?

Protecting your brand from counterfeiting involves a multi-faceted approach:

• Intellectual property protection: register your trade marks, copyrights, and patents to establish legal ownership.

• Brand protection services: utilise brand protection agencies to monitor online and offline marketplaces for counterfeit products.

• Supply chain security: implement robust supply chain measures to prevent counterfeit products from entering the market.

• Consumer education: educate consumers about the dangers of counterfeit products and how to identify authentic products.

• Law enforcement cooperation: work closely with law enforcement agencies to investigate and prosecute counterfeiters.

6.2 What are the legal remedies available against counterfeiters?

Legal remedies vary depending on the jurisdiction. However, common remedies include:

• Civil actions: injunctions, damages and seizure of counterfeit goods.

• Criminal prosecution: pursuing criminal charges against counterfeiters, leading to fines and imprisonment.

• Customs enforcement: collaborating with customs authorities to prevent counterfeit products from entering the country.

6.3 How can I reduce the financial impact of counterfeiting on my business?

Reducing the financial impact of counterfeiting involves several strategies:

• Risk assessment: identify high-risk markets and products to focus prevention efforts.

• Brand monitoring: regularly monitor for counterfeit activity to detect issues early.

• Conduct watch of the Trade Marks Journal: this is to monitor offending or conflicting trade mark applications that may be published.

• Conduct periodic monitoring of products registered with the regulatory within the brand owner’s industry: this may include the National Agency for Food and Drug Administration and Standards Organisation of Nigeria. Note that trade mark registration alone does not guarantee market entry, as a brand owner may be met with challenges in order to obtain market authorisation.

• Supply chain diversification: reduce reliance on single suppliers to mitigate risks.

• Insurance: consider purchasing insurance coverage for counterfeit-related losses.

• Public relations: manage the negative impact of counterfeiting on your brand’s reputation.

There are no other updates that haven’t already been outlined in this chapter. 

Relevant organisations helpful in brand protection are as follows:

The Trade Marks Registry

www.iponigeria.com 

The Patents and Designs Registry

www.iponigeria.com

National Agency for Food and Drug Administration and Control

www.nafdac.gov.ng 

Standards Organisation of Nigeria

www.son.gov.ng 

Federal Competition and Consumer Protection Commission

www.fccpc.gov.ng 

Corporate Affairs Commission

www.cac.gov.ng 

Nigeria Internet Registration Association (NIRA)

www.nira.org.ng

Nigeria Police Force

www.npf.gov.ng