Mar 2024

Nigeria

Law Over Borders Comparative Guide:

Fashion Law

Introduction

Over the past decade, the Nigerian fashion market has experienced a significant surge in entrepreneurial activities, transforming the sector into a major employer, with over 2.1 million Nigerian youth finding employment in this field, as reported by Jobberman in 2022. The Nigerian fashion industry encompasses a diverse and vibrant value chain that fosters economic growth and innovation. The key components of this thriving ecosystem, as reported in the UNESCO 2023 Fashion Report, are as follows: 

  • raw material suppliers;
  • textile and component manufacturers;
  • design and product developers;
  • garment manufacturers;
  • distribution and logistics;
  • retailers;
  • industry support; and
  • business professionals.

Despite grappling with various challenges (including insufficient infrastructure, a shortage of skills in textile and garment production, and the ongoing rise in the cost of imported textiles), Nigeria’s fashion ecosystem remains vibrant. Challenges such as the cost and availability of local textiles persist. Nevertheless, this thriving environment not only offers opportunities for local entrepreneurs but also attracts global brands. The sector plays a pivotal role in shaping the employment landscape and contributing significantly to Nigeria’s economic development.

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1 . What are the main intellectual property rights available to protect fashion products?

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1.1. Summary of IPRs

IPR in NigeriaDurationTime and modalities for grantPros and cons in the fashion sector

Trademarks

 

A registered trademark is initially valid for 7 years and then valid for a further 14 years after each renewal. 

The process for registration takes 12 –18 months, progressing as follows:

  • Conduct a search.
  • File an application.
  • Examination carried out by the Trademarks Registry.
  • Acceptance by the Registry and publication in the Trademarks Journal.
  • If an opposition is filed, the Trademarks Registry will investigate the matter and may hold a hearing to determine whether the opposition is valid.
  • Issuance of certificate.

Pros:

  • A registered trademark can become a valuable asset for a fashion business as the business builds its brand equity.
  • Registration provides legal protection for a brand’s name, logo, or slogan.

Cons:

  • Protection is limited to the specific classes of goods or services for which the mark is registered. 
  • Enforcing trademark rights can be challenging, especially across international borders. 

Industrial Design

 

The registration is valid for 5 years from the date of the application and renewable for 2 further consecutive terms of 5 years each, subject to the payment of the prescribed fees.

A grace period of 6 months is allowed from the date when a design should lapse to pay for its renewal, subject to the payment of the prescribed penalty fees.

This requires a time frame of 6 – 9 months:

  • Consider whether or not the design is new.
  • Prepare and file application.
  • Once the application is filed with all the supporting documents then the Registrar will issue an Acknowledgement Notice confirming the receipt of the application.
  • There is an examination of the application to ensure the formal requirements are met and that the design does not contravene public order or morality. If the application meets the requirements then an Acceptance Notice will be issued. Otherwise, a Refusal Notice will be issued.
  • Once the design application has been accepted, the design is then registered and a registration certificate will be issued 

Pros:

  • Industrial design protection centres on the visual appearance of an actual product.
  • Registered industrial designs provide a legal basis for taking action against unauthorised use or imitation. 

Cons:

  • Industrial design protection does not cover functional aspects of a product.
  • Industrial design protection typically has a limited duration. 

Trade secrets

 

 

N/ATrade secrets are not statutorily protected in Nigeria. As such, there is no procedural formality for their registration. Therefore a trade secret can be protected for an indefinite period, provided it is not disclosed to the public.

Pros:

  • Indefinitely protected as long as they remain confidential and are not publicly disclosed.
  • Protection of a wide range of information, including manufacturing processes, sourcing strategies, and business methods. This broad scope can cover various aspects of a fashion business’ operations.

Cons: 

  • Enforcing trade secrets can be challenging. If a trade secret is misappropriated, proving the case in court may require substantial evidence.
  • Lack of a monopoly on the underlying idea or concept. Competitors can independently develop or discover the same information, and trade secret protection does not prevent them from using it.

Domain names

 

 

N/A

This is an immediate process:

  • Choose a name and check for the availability of the name.
  • Register the domain with an accredited domain registrar.

Pros:

  • Registration prevents others from using a similar or identical domain name, reducing the risk of brand confusion or infringement.
  • Registering a domain name legally establishes ownership rights. 

Cons:

  • Periodic renewal, typically on an annual basis. 
  • Registration does not guarantee that one will always win domain name disputes. Legal processes can be subjective, and outcomes may depend on various factors.

Patents

 

 

Protection lasts for 20 years from the filing date, subject to the payment of annual maintenance fees (annuity). A patent will lapse if the patentee fails to pay the patent’s annuity.

The time frame required is 9 – 12 months, sometimes longer. The process is as follows:

  • Conduct a search to determine if the invention is new and non-obvious.
  • Prepare and file the application.
  • Once the application is filed, it is examined to ensure that it meets the requirements for patentability.
  • If no opposition is filed within two months of publication, the patent is granted and the applicant is issued a certificate of registration.

Pros:

  • A registered patent can open up opportunities for licensing agreements in Nigeria. Other businesses may seek permission to use a businesses’ registered patent, providing additional revenue streams.
  • Registration is a formal recognition of innovation. It adds credibility to the fashion brand as a leader in advancements within the Nigerian Fashion industry.

Cons:

  • Enforcing patent rights can be challenging and may require legal action. This process can be time-consuming and expensive.
  • Limited duration and freedom for others to use the innovation once registration expires.

Copyright

 

 

The duration of copyright protection for artistic works (other than photographs) is 70 years after the end of the year in which the author dies.

For the government or a corporate body, protection is for 70 years after the end of the year in which the work was first published.

 

The time frame for copyright is immediate.

The application is submitted to the Nigerian Copyright Commission accompanied by the prescribed fees, a completed registration form, and copies of the work to be copyrighted.

 

Pro: Protection of artistic works, which can including sketches and design illustrations.

Con: Lack of protection of the underlying functionality.

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1.2. Trademarks and non-traditional trademarks

Registered trademarks in Nigeria are governed by the Trademarks Act, Chapter T13 Laws of the Federation of Nigeria 2004 (TMA). Pursuant to section 9 (1)(e) of the TMA, among the key factors required for a trademark to be registrable in Nigeria is that it must consist of a distinctive mark.

Paragraph (e) provides an avenue for registration of non-traditional marks in Nigeria. Accordingly, should an application be made at the Nigerian Trademarks Registry for a non-traditional trademark, it is potentially registrable, as there are no express prohibitions under Nigerian trademark law.

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1.3. Design as an alternative or addition to TM registration

In Nigeria, industrial designs are protected by the Patents and Designs Act 1970 (Cap P2 LFN 2004). Specifically, sections 12 – 22 of the Act contain provisions special to the protection of designs. Under section 13 of the Patent and Design Act, any combination of lines or colours or both, and any three-dimensional form, whether associated with colours, is regarded as an industrial design if it is intended by the creator to be used as a model or pattern to be multiplied by industrial process and is not intended solely to obtain a technical result. 

A noteworthy legal precedent in this context is the case of FO Ajibowo and CO LTD v. Western Textile Mills Ltd, as decided by the Supreme Court of Nigeria, wherein it was established that a textile design qualifies as an industrial design, constituting a combination of lines or colours or both.

When applying for industrial design protection for a textile or ornament, a strategy must be adopted to ensure that the design is new and has not been disclosed to the public.

In general, industrial design protection can be a valuable addition to protect the unique appearance of fashion products, however it is not a substitute for trademark protection. 

Given the inherently brand-centric nature of fashion businesses, a paramount step in protecting intellectual property within this industry is through the registration of a fashion brand’s trademark. 

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1.4. Copyright as an alternative or addition to TM registration

In Nigeria, copyright is governed by the Copyright Act, Laws of The Federation of Nigeria 2022 (Copyright Act). Section 2 provides the works that can be eligible for copyright protection: literary works, musical works, artistic works, audiovisual works, sound recordings, and broadcasts. Since the work of a fashion designer can undeniably be considered an artistic creation, it would appear that it can be protected under section 2 of the Copyright Act. However, a limitation to this protection is that, at the time it was made, such artistic work must not have been intended by the author to be used as a model or pattern to be multiplied by any industrial process.

This exception implies a limitation of copyright protection for fashion designs, particularly in cases where mass production for public use is intended. Consequently, the nature of fashion, where garments are often manufactured and reproduced for widespread consumption, may limit the applicability of copyright protection.

In navigating the intellectual property landscape for fashion, the choice between copyright, trademark and design registration, or a combination thereof, depends on the specific nature of the intellectual property and the desired scope of protection. To protect the aesthetic and artistic representation of a product or brand identifier, a strategic approach is to file simultaneously for industrial design and trademark protection. This strategy is recommended because relying on copyright protection alone may prove challenging due to the aforementioned limitation on intended industrial use.

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1.5. Any other pertinent IP rights

Patents. The Patents and Designs Act, Chapter P2 Laws of the Federation of Nigeria 2004 (Patents and Designs Act) governs the registration and practice of patents in Nigeria. Section 1(1) of the Patent & Designs Act, provides the requirement for a registered patent.

Geographical Indications (GIs). Presently, Nigeria lacks dedicated legislation for GIs, but section 43 of the TMA provides protection upon proof of origin, community, quality characteristics, or manufacturing methods connected to the products’ origin.

Domain names. The primary regulatory agency for domain names includes the National Information Technology Development Agency (NITDA) established by the NITDA Act and The Nigeria Internet Registration Association (NIRA). NITDA creates a framework for the planning, research, development, standardisation, application, coordination, monitoring evaluation, and regulation of Information Technology practices, activities and systems in Nigeria.

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2 . Beyond intellectual property: what contractual arrangements are useful in manufacturing, distributing and advertising fashion products?

In addition to intellectual property, several contractual arrangements are critical to the manufacture, distribution and promotion of fashion products in Nigeria. These contractual arrangements are unique and have distinctive clauses, however some other clauses are similar and these are as follows: 

  • Parties clause. For clarity purposes, the full name of parties and their addresses must be properly provided in the agreement.
  • The definition clause. A definition clause in an agreement is a section that provides specific and clear definitions for key terms used throughout the agreement. The purpose of this clause is to avoid confusion or ambiguity by establishing precise meanings for important terms, to ensure that all parties interpret the language in the same way.
  • Boilerplate clauses. Boilerplate clauses, also known as standard or miscellaneous clauses, are commonly used provisions in contracts that address general legal issues and set forth the rights and obligations of the parties. These clauses are considered standard or routine and are often included in contracts to ensure comprehensive coverage of legal elements. These clauses include, but are not limited to, severability, waiver, force majeure, dispute resolution, jurisdiction and governing law, entire agreement, and amendments.
  • The execution. This includes the effective date, the identification of the signing parties, and the signatures of the parties. This typically appears at the end of the contract and serves to provide clarity as to how the parties formally indicate their intent to be bound by the terms and conditions outlined in an agreement.
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2.1. Manufacturing fashion products

In the manufacture of fashion products, various contractual arrangements may be used to govern the relationships between the parties involved. The key contractual arrangements and clauses may vary depending on the specific nature of the relationships.

Licensing agreements 

Licensing agreements must outline the rights, obligations, duration, and any restrictions imposed on the parties. Some key clauses in licensing agreements for manufacturing fashion goods include:

  • The main provision, which outlines the core terms and conditions that govern the licensing relationship between the licensor (owner of the intellectual property) and the licensee (party receiving the license).
  • The secondary provision, which addresses various additional considerations beyond the core terms of the license grant. The secondary provisions cover various ancillary matters that contribute to the clarity, enforceability, and smooth functioning of the agreement.

Non-disclosure Agreements (NDAs)

NDAs play a crucial role in the manufacturing of fashion products, especially when sensitive information, proprietary designs, or trade secrets are involved. Here are key clauses for NDAs in the context of manufacturing fashion products:

  • The main provision, which contains the following clauses (amongst others): the term of the agreement, termination clause, the obligation of the receiving party, prohibition of unauthorised use, the intellectual property clause and exclusion.
  • The secondary provision, which includes the following clauses (amongst others): indemnification, notices, compliance with laws (in Nigeria, this has to be “In accordance to The Laws of The Federal Republic of Nigeria”), change of control and non-compete clause.

Subcontract agreements with suppliers/in-house manufacturing

The key clauses in Nigeria for a subcontract agreement with suppliers/in-house manufacturing are as follows:

  • The main provision, which may include the following; scope of work, term and termination, delivery and acceptance, pricing and payment terms, quality standards, intellectual property, and the confidentiality clause.
  • The secondary provision, which includes the following clauses (amongst others): insurance, indemnification, assignment, notices, compliance with laws (in Nigeria, this has to be “In accordance to The Laws of The Federal Republic of Nigeria”) and non-compete clause.
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2.2. Distributing fashion products

Fashion distribution involves a complex network of relationships and processes, and the importance of contractual arrangements cannot be overstated. 

Agency agreement 

The law-governing agency relationship in Nigeria is the received English law, particularly the common law and equity. Agency relationship in Nigeria represents a situation where a principal is bound by the acts of another (the agent). This is an exception to the principle of privity of contract which generally disentitles an individual from acquiring rights or obligations under a contract to which that individual is not a party. An agency relationship generally arises when a person is given legal authority by another to enter into a legal relationship on the latter’s behalf. The agent’s act has the same effect on the principal as if he had contracted for himself, as expressed in a Latin maxim, Oui Facit Per Alium Facit Per Se (“Whoever acts through another acts for oneself”). Similarly, if an agent commits a wrongful act, that agent becomes liable as apathy to the offence or as a joint tortfeasor with the principal.

Selective distribution online in high-end fashion and trademark protection

Not applicable yet in the jurisdiction.

Co-branding and co-marketing 

In addition to the aforementioned agreement key clauses, the key clauses expected to be in an agreement to regulate brand and royalty management include:

  • confidentiality clause;
  • intellectual property protection clause;
  • exclusivity and non-compete clause;
  • grant of rights; and
  • compensation clause.

The clauses above should provide clarity between the parties in a co-branding and co-marketing transaction.

Franchising and alternative sales model agreements 

In the Nigerian fashion industry, franchising and alternative sales models play a crucial role in expanding the market. In addition to the general terms of a contract, the following specific clauses will apply to a fashion franchise or other sales models, including corner store arrangements:

  • training support;
  • intellectual property protection;
  • confidentiality;
  • terms and termination;
  • insurance;
  • limitation of liability; and
  • payment.
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2.3. Advertising fashion products

Employing fashion models 

In Nigeria, model release forms are crucial legal documents that grant the photographer or the employing entity the right to use the model’s images. They typically include a detailed clause on image rights as well as other key information. 

Social media, influencers and brand ambassadors/celebrities 

In working with influencers and brand ambassadors/celebrities it is important to ensure the clause on the governing law and dispute resolution is in accordance with the laws of the Federal Republic of Nigeria. Another key clause is the intellectual property clause, which would be subject to the provisions of the intellectual property laws applicable in Nigeria (as mentioned above).

Other general clauses include: the scope of work, compensation, non-compete, duration and termination and boilerplate clauses, amongst others.

Advertising standards, relevant authorities and advertising practice

In Nigeria, there are no specific advertising rules applicable in the fashion industry. General advertising is primarily regulated in Nigeria by the Advertising Regulatory Council of Nigeria Act 2022 (ARCON). The Council is generally responsible for regulating advertisements published online and all advertisements must be approved by the Council before they are published. 

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3 . What regulations govern online marketing and how are the rules enforced?

In 2019, pursuant to its powers under the NITDA Act of 2007, the National Information Technology Development Agency issued the Nigeria Data Protection Regulation (NDPR). It is the principal regulation for data protection in Nigeria. In 2020, NITDA also issued an Implementation Framework in respect to the NDPR, and also the Guidelines for the Management of Personal Data by Public Institutions in Nigeria to regulate personal data processing within public institutions. Under the NDPR personal data must be processed in accordance with a specific, legitimate and lawful purpose consented to by the data subject. 

Moreover, the Nigerian Communications Commission (NCC) issued the NCC Regulations, which require all licensees to take reasonable steps to protect customer information against improper or accidental disclosure, and ensure that such information is securely stored and not kept longer than necessary. The NCC Regulations further prohibit the transfer of customer information to any party except to the extent agreed with the customer, as permitted or required by the NCC or other applicable laws or regulations.

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3.1. Consumer protection regulations

A consumer whose rights have been violated by any business or individual can file a complaint with the Federal Competition and Consumer Protection Commission (FCCPC) or refer the situation for redress. In addition, the consumer may seek relief in a court of competent jurisdiction. The Commission has the power to investigate complaints and issue appropriate orders. The Commission can register its orders in the court as consent orders of the court. The Act also provides that a consumer may file a complaint with the FCCPC if the consumer has suffered injury as a result of the purchase of goods that are damaged, defective or unfit for their intended purpose.

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3.2. Physical store and online store layout

Key elements that make up the layout may be protected for a physical store through industrial design protection, and for an online store through trademark and copyright protection.

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4 . What are the most relevant unfair competition rules for fashion businesses and how do the courts interpret and enforce these rules?

While Nigeria lacks a dedicated statute specifically addressing unfair competition in the fashion industry, the regulatory landscape draws on an amalgamation of legal principles and statutes to effectively regulate such practices. Key among these is the Federal Competition and Consumer Protection Act 2018 (FCCPA), which stands as a pivotal legal framework. The FCCPA, designed to foster fair competition, safeguard consumer rights, and curb anti-competitive conduct, plays a central role in guiding and shaping business practices across various sectors, including fashion.

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5 . Is there any regulation specifically addressing sustainability or ESG (Environmental, Social and Governance) in the fashion industry?

In Nigeria, the National Environmental (Textile, Wearing Apparel, Leather And Footwear Industry) Regulations of 2009, S.I. no. 34/2009, stands as a critical regulatory framework established under the National Environmental Standards and Regulations Enforcement Agency Act. This set of regulations is strategically designed to address and mitigate the environmental impacts of textile industry operations. These regulations cover a range of critical issues (e.g. waste minimisation, pollution control systems, chemical usage, effluent standards, air emissions, and noise pollution). The guidelines set forth in the regulations serve as a comprehensive framework for environmental protection within the textile industry.

However, it is noteworthy that Nigeria currently lacks specific legislation or regulations tailored to address the issue of greenwashing. Surprisingly, there is no recorded instance of a greenwashing case being adjudicated by a Nigerian court or administrative tribunal. Furthermore, no individual or entity has been subjected to administrative action by relevant agencies or ministries in the country for greenwashing practices. This absence underscores the need for specific legislation to combat greenwashing and ensure fair competition, investor protection and consumer welfare.

In Nigeria, the Standard Organisation of Nigeria (SON) adopts mainly ISO, American, European, African and ECOWAS standards as well as its own standards.

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6 . Customs monitoring: do any special import and export rules apply to fashion products?

There are no specific import and export regulations for fashion goods in Nigeria; instead, traders are expected to comply with the guidelines of the Central Bank of Nigeria and the Nigerian Customs Service. For anyone wishing to import goods into Nigeria, whether an individual or a company, compliance with the guidelines of the Trade and Exchange Department of the Central Bank of Nigeria is essential.

A notable development in trade facilitation is Nigeria’s Single Window Portal, a collaborative project involving government agencies responsible for customs clearance. The Single Window Portal, accessible at www.nigerianports.gov.ng, serves as a valuable resource for traders involved in import and export activities and provides a centralised platform for streamlined and efficient customs processes.

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7 . Frequently Asked Questions (FAQs)

How can I navigate the complexities of international fashion law when expanding my brand globally?

Expanding a fashion brand internationally involves a nuanced understanding and adherence to the legal frameworks unique to each target market. Several critical considerations come into play, including intellectual property protection, compliance with local regulations, negotiation of contracts with international partners, and a thorough understanding of import/export laws.

What legal considerations should I keep in mind when entering into a collaboration with another fashion designer or brand?

Collaborations in the fashion industry require clear contractual agreements. Key considerations include defining each party’s contributions, specifying intellectual property ownership, addressing issues of exclusivity, setting forth the scope of the collaboration, and establishing a dispute resolution mechanism. 

How can my company protect trade secrets?

Trade secrets need not be registered in Nigeria, but they can be protected through legal and technological procedures such as executing a confidentiality agreement or a non-disclosure agreement (NDA) with third parties. Enterprises are advised to protect their trade secrets by entering into confidentiality/non-disclosure agreements with employees and any other third party involved in the business.

EXPERT ANALYSIS

Chapters

Australia

Derek Baigent
Ellen Baker
Jennifer Wyndham-Wheeler
Shannon Fati

Belgium

Christine De Keersmaeker
Katrijn Huon

Brazil

Flavia M. Murad-Schaal
Isadora Schumacher Jeong

Finland

Hilma-Karoliina Rozell

France

Floriane Codevelle
Karina Dimidjian-Lecomte

Germany

Ariane Hettenkofer
Gina Maria Ziaja

Greece

Alexandra Varla
Maria G. Sinanidou

Hong Kong

Hank Leung
Harry Wong

India

Radha Khera
Ashwin Julka

Ireland

Patricia McGovern

Italy

Alice Fratti
Beatrice Cazzanelli
Carlo Colaci
Francesca Ferrero

Mexico

Erik Pérez Caballero
Luis Pavel García Costinica

Singapore

Lorraine Tay
Cheryl Lim

Spain

David Fuentes Lahoz
José Miguel Lissén Arbeloa

Taiwan

Cathy Wang
Huan-Yi Lin
Matthew Lee

Thailand

Chanya Veawab
Michelle Ray-Jones

United Kingdom

Gary Assim

United States

Megan Bannigan

Vietnam

Chi Lan Dang
Diep Thi Bich Le
Hien Thi Thu Vu
Tu Ngoc Trinh

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