Juridical Limits of Trademark Use: Name Sharing in Trademark Law and Practice in Nigeria

Abstract

The established principle on which trademark protection rests is that a trademark owner has exclusive right in his trademark and that right prohibits third parties from using or registering identical or similar trademark as is likely to cause confusion in the course of trade. The exclusive use of trademark which trademark protection guarantees is built on the premise that a registered trademark is genuinely intended to be used on products for which it is registered. By that exclusivity, trademark is allowed to perform its essential function, which is to serve as the symbol of identifying and differentiating products and much more. Consequently, every trademark owner is apt to fully appropriate the benefits of exclusivity that trademark law confers and would normally be averse to sharing the same trade mark with others given the nature of the rapidly expanding commercial and technological market place, but which may occur in a variety of circumstances or scenarios that have continued to stretch the limits of trademark law. Principles have been developed to govern the diverse scenarios of name sharing, which principles have continued to shape the legal, economic and policy ramifications of the essential functions of trademark and the rapidly increasing role that trademark performs in contemporary commercial life. This article critically examines specific circumstances or categories of activities and legal requirements under which it is permissible for entities to share the use of the same trademark in respect of the same or different products under the Trademarks Act 1965 of Nigeria. It examines the wider implications on the foundational and essential functions of trademark. It analyses the central role of bona fide or honest use, which constitutes the dominant theme and the guiding principles governing the issues surrounding different circumstances for shared use of trademarks under the aforesaid Trademarks Act.