In Nigeria, trademark law does not allow anyone to monopolise language that belongs to everyone. The Nigerian Trademarks Act (Cap T13 LFN 2004) protects genuine brand investment but rejects attempts to privatise words or expressions that describe culture, geography, or common experience — a principle known as trademark distinctiveness in Nigeria.
What Makes a Trademark Distinctive?
When a company files for a trademark, the Registrar of Trademarks examines whether the proposed mark can distinguish the applicant’s goods or services from those of others. Section 9 of the Act sets the basic rule: a trademark must be distinctive.
That means the average person should recognise it as a particular brand, not as a general description of an activity. Words that simply describe a service — like Fun Festival, Sweet Rice, or Detty December — fail this test because they point to the experience itself rather than to a unique commercial source.
Yet distinctiveness is not a frozen quality; it changes with public usage.
From Distinctive to Descriptive: The ‘Detty December’ Story
When Nigerian artist Mr Eazi first used Detty December around 2016, the word Detty — a playful twist on dirty — was fresh, coined, and connected to his musical persona. At that early stage, it could arguably have qualified as distinctive: an invented spelling with a specific brand association.
But as the phrase spread through social media, it evolved into a communal expression for the country’s festive season. By the time another company, Livespot360, registered the mark in 2019, the phrase had entered mainstream slang. It no longer pointed to one organiser or artist; it described a shared cultural mood.
Genericide and the Loss of Distinctiveness
This transformation illustrates a legal principle called genericide — when popular adoption turns a once-distinctive mark into common language. Trademark law does not punish success, but it withdraws protection when a term ceases to identify a single source.
When Livespot360 registered Detty December in 2019, the phrase may still have appeared distinctive enough to pass examination. Under Nigerian practice, the Registrar checks each application for distinctiveness and potential conflicts, then publishes accepted marks in the Trademarks Journal for sixty days.
If no opposition is filed, registration follows. Because the phrase had not yet entered mainstream slang at that time, it likely escaped objection. Now that the expression has become cultural shorthand for Nigeria’s festive season, many lawyers argue it no longer functions as a trademark at all.
Under the Trademarks Act, such marks can later be invalidated or removed for non-use or loss of distinctiveness — proof that the law recognises that language evolves, and so must the register.
Public-Interest Limits under Section 11
Section 11 of the Act strengthens public-interest protection by prohibiting marks that are deceptive, scandalous, contrary to morality, or likely to mislead the public. A mark drawn directly from shared cultural life can fall under this category if private registration would offend communal values or restrict cultural expression.
The purpose is simple: no one should use legal machinery to take ownership of what is culturally descriptive, geographically rooted, or morally offensive to the public.
How Distinctiveness Is Earned —or Lost
Distinctiveness can be earned or lost through use, advertising, and public recognition. A coined word such as Glocadia for a concert series may become registrable because it does not exist in ordinary language.
But slang, proverbs, festival names, or local dishes often remain generic identifiers that the Registry treats as communal property. These categories keep expressions like Ofada Rice, Eyo Festival, or Detty December available for all who celebrate, cook, or organise events around them.
Refusal, Opposition, and Cancellation Procedures
The Registrar of Trademarks, operating under the Federal Ministry of Industry, Trade and Investment, has power to refuse registration on these grounds.
Even after publication, citizens or affected parties may apply to the Federal High Court to cancel a registered mark if it is proven to be descriptive, non-distinctive, or contrary to public policy.
This safeguard balances innovators’ rights with society’s right to keep its collective identity free.
Nigeria’s Approach in Global Context
Nigeria’s approach follows global principles in the Paris Convention and the TRIPS Agreement, both of which discourage granting exclusive rights over common or descriptive expressions.
The aim is not to limit creativity but to protect public heritage from enclosure. When the law is properly applied, it keeps culture in the commons while rewarding genuine innovation — an approach that strengthens trademark distinctiveness in Nigeria and ensures cultural language remains free.
Key Takeaways for Creators and Brand Owners
Cultural phrases, seasonal slang, and community identifiers thrive precisely because they belong to everyone. Trademark law should defend that openness.
To own a brand is legitimate; to own a culture is not.
Sources
- Trademarks Act (Cap T13 LFN 2004) – PLAC
- Trademarks, Patents and Designs Registry – FMITI
- Federal High Court of Nigeria – Official Portal
- World Trade Organization – TRIPS Agreement
- WIPO – Paris Convention (1883)
Expert Video Resources
- Distinctiveness of Trademarks – WIPO Academy
- Introduction to Trademark Distinctiveness – University of London Faculty of Laws
- ARIPO – Connecting Creators & Innovators to Seamless IP Protection
- WIPO – Intellectual Property Online Lecture Series 2020
- Unlocking Africa’s Intangible Assets: IP, Traditional Knowledge & Traditional Cultural Expressions
- Traditional Knowledge and Cultural Expressions: Appreciation or Appropriation?
- Traditional Knowledge and Cultural Expression – Oluwatobiloba Moody & Juliana Imam
Frequently Asked Questions
Q1: Can cultural phrases like “Detty December” be registered as trademarks in Nigeria?
Only if they are distinctive and identify one clear commercial source. Once a term becomes common slang, it usually loses distinctiveness and can no longer qualify for protection.
Q2: What does Section 9 of the Nigerian Trademarks Act cover?
Section 9 sets the core rule that a trademark must be distinctive—not descriptive or generic—to be registrable under Nigerian law.
Q3: What happens when a trademark becomes generic?
When public use turns a mark into common language, the registration can be cancelled or removed from the Register for loss of distinctiveness. This ensures everyday words remain free for all.
Q4: Who enforces trademark registration and opposition in Nigeria?
The Trademarks, Patents and Designs Registry under the Federal Ministry of Industry, Trade and Investment administers applications, publications, oppositions, and renewals.
About the Author
AaLawsNG is a Nigerian legal practice providing corporate, commercial, regulatory, and dispute-resolution services across diverse sectors. The firm advises businesses, creators, and professionals on compliance, contracts, and governance, as well as intellectual-property protection and brand strategy through its Intellectual Property Desk.
For more legal insights and information, kindly visitAaLawsNG.com.
Disclaimer:
This publication is provided by AaLawsNG for general information and educational purposes only. It does not constitute legal advice and should not be relied upon as such. Readers are encouraged to seek specific legal counsel for advice relevant to their particular circumstances.