Comparative Advertising and Trademarks Infringement in Nigeria

Abstract

Comparative advertising is a business strategy and is legalized in some jurisdictions provided it complies with honest business practices and unfair competition laws. However in Nigeria, the Trademarks Act clearly authorises only the trademark owner to the use of his mark, the Act distinguishes between registration in Parts A and B and declares it an infringement of marks registered in Part A to be used in comparative advertising. Considering the role of advertising in economic development and growth of businesses, the right of the consumer to make informed decisions based on availability and access to information, therefore a strict interpretation of the provision of Trademarks Act that relates to comparative advertising will be both restrictive and a hindrance. This article is a critical analysis of the extant laws on comparative advertising and trademark infringement in Nigeria. It reviews the position of the law on comparative advertising under the Nigerian Trademarks Act and questions whether the extant provision of the law is too rigid in that regard. In view of other statutory provisions that access fairness and honest commercial practices, it is recommended that comparative advertising would be better accessed on those standards and not strictly declared an infringement as provided under the Act. It concludes that there is a need to review the Act to permit comparative advertising and allow fair and honest competition practices for the benefit of every party. This will also align the Act to international best practices that has been adopted in other jurisdictions.