Vesting for Prior, Independent and Honest Concurrent Use in the Nigerian Trademark Protection Law: Quagmire for the Consumer

Abstract

Trademarks are tools of identity used to differentiate goods in the market place, 
protect the integrity of the trademark owner and ensure that consumers are 
protected by providing guidance to them with respect to the quality of goods 
and services. Part of the function of trademark law is to protect consumers from 
deception or the likelihood of confusion with respect to goods and services by 
the use of marks to differentiate products in the market place. The exceptions to 
trademark infringement created by Sections 5(4), 7 and 13(2) of the Nigerian 
Trademarks Act are recognized as providing security for prior, independent and 
honest concurrent use of similar or identical marks. These sections permit the 
dual use of trademarks and therefore conflict with and undermine the consumer 
protection function of trademark because when similar products are in the 
market place, consumers would likely be deceived or confused. This work 
which is doctrinal, attempts to critically analyze the position of the law in 
protecting prior, independent and honest concurrent users and the conflicting 
interests that would be created for consumers. It also recommends the 
integration of factors utilized in other jurisdictions in resolving or avoiding this 
conflict.