WORLD TRADE
ORGANIZATIONIP/C/W/344
29 May 2002
(02-2955)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Responses from Nigeria to the questions posed by Australia, Canada, the European Communities and
their member States, Switzerland and the United States
By means of a communication from the Permanent Mission of Nigeria, dated 18 March 2002,
the Secretariat has received the following responses to the questions posed by Australia, Canada, the
European Communities and their member States, Switzerland, and the United States, as circulated in
documents IP/C/W/328, 314, 320 and Add.2, 315 and 316, respectively.
_______________
AUSTRALIA
A. PATENTS (INCLUDING PLANT VARIETY PROTECTION )
1. How does your country provide protection for new plant varieties as required under
Article 27.3(b)?  If your legislation is based on the UPOV system, on which UPOV Act was it
modelled?  Can new plant varieties be protected by patent in your country?
Nigeria does not provide protection for plants either through patents or sui generis.  However,
a draft bill on some form of protection for plant varieties is being considered.   
CANADA
1. Please describe how the enforcement obligations (Articles 41-61 of the TRIPS
Agreement) have been implemented.
Response to this question is in the document en titled "Checklist of Issues on Enforcement-
Responses from Nigeria", under the symbol IP/N/6/NGA/1 as circulated to WTO Members.
2. What protection does your copyright legislation afford to "foreign works"?
[No response received]IP/C/W/344
Page 2
EUROPEAN COMMUNITIES AND THEIR MEMBER STATES
A. GENERAL PROVISIONS
1. Please describe if your legislation includes measures necessary to protect public health
and nutrition, and to promote the public interest in sectors of vital importance to your socio-economic and technological development as mentioned under Article 8 of the TRIPS
Agreement.  If yes, please explain how such measures are consistent with provisions of the
TRIPS Agreement.
The Patents & Designs Act First Schedule, Parts I and II (as notified) essentially dealt with
grant of Compulsory Licences and for Use of Patents for Service of Government Agencies.  It also
provides for measures necessary to protect public health and nutrition, and to promote the public
interest in sectors of vital importance to our socio-economic and technological development asmentioned under Article 8 of the TRIPS Agreement (1994).
Grant of Compulsory Licences (Part I)
Paragraph 1 of the First Schedule provides that at any time after the expiration of a period of
four years after filling a patent application or three years after the grant of a patent which ever period
last expires an interested person may apply to the court for the grant of compulsory licence on one or
more of the following grounds:
(a) that the patented invention being capable of being worked in Nigeria has not been so
worked;
(b) that the existing degree of working of the patented invention in Nigeria does not meet
on reasonable terms the demand for the product;
(c) that working of the patented invention in Nigeria is being hindered or prevented by
the importation of the patented article;  and
(d) that by the reason of the refusal of the patentee to grant licences on reasonable terms,
the establishment or development of industrial or commercial activities in Nigeria is
unfairly and substantially prejudiced.
Paragraph 2 of the Schedule provides that if an invention protected by a patent in Nigeria
cannot be worked without infringing rights derived from a patent granted on an earlier application or
benefiting from an earlier foreign priority, a compulsory licence may be granted to the extent
necessary for the working of the invention if the invention:
(a) serves industrial purposes different from those served by the invention which is the
subject of earlier patent;  or
(b) constitutes substantial technical progress in relation to that last mentioned invention.
If the two inventions mentioned in paragraph 2 of the Schedule serve the same industrial
purposes, a compulsory licence may be granted under that paragraph only on condition that a
compulsory licence shall also be granted in respect of the later patent to the patentee of the earlier
patent, if he so requests.
On hearing an application for a compulsory licence, the court shall first decide whether a
compulsory licence may be granted, and shall then if it decides in favour of the grant and the partiesIP/C/W/344
Page 3
cannot agree on the terms, proceed to fix the terms (i ncluding adequate royalties having regard to the
extent to which the relevant invention is to be worked) which shall be deemed to constitute a valid
contract between the parties.
Paragraph 13:  The Minister by order in the Federal Gazette  may provide that, for certain
patented products and processes (or for certain categories thereof) declared by the order to be of vital
importance for the defence or the economy of Nigeria, or for public health, compulsory licences may
be granted before the expiration of the period mentioned in paragraph 1 above and may permit
importation.
Use of Patents for Service of Government Agencies
(1) Where a Minister is satisfied, that it is in the public interest to do so, he may authorize any
interested person to purchase, make, exercise or vend any patented article or invention for the
service of a government agency in Nigeria.
(a) the authority of the Minister may be given before or after the relevant patent has been
granted;
(b) before or after doing the acts in respect of which the authority is given;  and
(c) to any person concerned or indemnified by the patentee to make use, exercise or vend
the relevant article or invention.
(2) Paragraphs 15 and 16 of the same Schedule provides that the grant of compulsory licence by
the Minister shall have effect so as to exempt:
(a) the Government;
(b) any person authorised to purchase, make, exercise or vend the patented article;
(c) any supplier of the Government or of any such person;
(d) any agent of such supplier,
from liability for the infringement of any patent relating to the relevant article or invention
and from liability to make any payment to the patentee by way of royalty or otherwise.
However, the draft bill takes into account Article 31(f) of the TRIPS Agreement.
B. COPYRIGHT AND RELATED RIGHTS .
2. Please state how your legislation provides for the protection of the exclusive rights of
authors in relation to their literary and artistic  works, as specified in Article 9 of the TRIPS
Agreement which requires Members to comply with  Articles 1-21 of the Berne Convention and
the Appendix to the B erne Convention (1971).
The legislation on copyright protection in Nigeria is the Copyright Act.  It gives protection to
six classes of works including literary and artistic works which are very broadly defined.  The
provisions comply fully with Articles 1-12 of the Berne Convention and the Appendix to the Berne
Convention (1971) as required by Article 9 of the TRIPS Agreement.IP/C/W/344
Page 4
3. Please describe the protection accorded to authors of computer programs, databases or
compilations of data.
(a) Computer programs are defined and protected as literary works under the Copyright
Act. Authors of literary works are given the exclusive right to control the doing of
any of the following acts:
(i) reproduce the work in any material form;
(ii) publish the work;
(iii) perform the in public;
(iv) produce, reproduce, perform or publish any translation of the work;
(v) make any cinematograph film or a record in respect of the work;
(vi) broadcast or communicate the work to the public by a loudspeaker or any
similar device;
(vii) make any adaptation of the work;
(viii) distribute to the public, for commercial purposes, copies of the work, by way
of rental, lease, hire, loan or similar arrangement;
(ix) do, in relation to a translation or an adaptation of a work, any of the acts
specified in relation to the work in sub-paragraph (i) to (iv) of this paragraph.
(b) Compilation of data, these are protected as literary works.
4. Please state whether your legislation provides for a rental right and, if so, the works to
which it applies.
It does provide for a rental right.  The legislation applies to literary and musical works,
cinematograph films, sound recordings and broadcasts.  In all cases the owner has the exclusive rightto distribute to the public for commercial purposes copies of the work by way of rental, leasing,
hiring, loaning or otherwise distributing cinematogr aph works, to the public for commercial purposes.
See Section 37(4) of the Act and Copyright (Video Rental) Regulations 1999, as notified.
5. Please describe the rights granted to performers, producers of phonograms (sound
recordings) and broadcasting organisations under your legislation.
A performer shall have the exclusive right to control, in relation to his performance, the
following acts:
(a) performing;
(b) recording;
(c) broadcasting live;
(d) reproducing in any material form;  andIP/C/W/344
Page 5
(e) adaptation of the performance.
6. Please state whether your legislation provides for any limitation or exception in relation
to each of the rights described above in acco rdance with the relevant provisions of the Berne
and Rome Conventions and in light of Articles 13 and 14.6 of the TRIPS Agreement.
The Act does provide, see Section 5(1) Copyright Act and the Second Schedule to the Act as
notified.
7. Please state the terms of protection of ea ch right described above and the work or
subject matter to which it applies.
The term of protection is as provided in Section 2(2) and first Schedule of the Act as notified.
8. Please state how your legislation grants the retroactive protection provided pursuant to
Article 18 of the Berne Convention (the obligation of which derives from Article 9 of the TRIPS
Agreement) and Article 14.6 of the TRIPS Agreement.
[No response received]
9. Please explain whether the droit de suite provided for in Article 14ter of the Berne
Convention is protected in your legislation.
The Act provides for droit de suit , see Section 12 of the Copyright Act.
C. TRADEMARKS
10. Please give the definition of a sign under your national legislation and explain under
what conditions it is protectable.
A protectable sign means device, brand, heading, label, ticket, name, signature, word, letter,
numeral, or any combination thereof.  See Section 67 of the Trademarks Act.
11. Please confirm whether or not services are a protectable subject matter in your
trademark law.  Please confirm if signs, such as trade names, are protectable.  Please describe if
elements such as sound, perfumes and containers are protectable.
Services are not currently protectable, however, a provision in the draft bill will make service
marks protectable.  Trademarks are protectable.  Sounds, perfumes and containers are protectable
insofar as they are made to come under the definition of marks.  For definition of mark see Section 67
trademarks Act as notified.
12. Please explain what the requirements of use a re, if any, as a condition for a trademark
registration.  Please explain the definition of use and the conditions of maintenance of a
registration in that respect.
A mark used or proposed to be used is registrable when a trademark is not in use for a period
of 5 years or more, the mark may be taken off the register, in respect of the goods for which it wasregistered, on an application made by any interested person, to court or at the option of the applicants,
to the Register on either of the grounds stated below:
(a) that the trademark was registered without any bona fied intention on the part of the
registrant, that the mark should be used in relation to those goods registered by himIP/C/W/344
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and that there has been no bona fied use of the trademark in relation to these goods
registered by the proprietor by the proprietor thereof for the time being up to the date
one month before the date of the application;  or
(b) that up to the date one month before the date of the application a continuos period of
five years or longer elapsed during which the trademark was a registered trademarkwas a registered trademark and during which there was no bona fied use thereof in
relation to those goods by any proprietor thereof for the time being.
But if it is shown that before the relevant date, or during the relevant period, as the case may
be, there has been bona fide use of the trademark by any proprietor for the time being thereof, in
relation to those goods of the same description, as the goods to which the application relates, being
goods in respect of which the mark was registered the application for removal from the register for
non-use will be refused.
13. Please confirm whether or not your legislation permits that the registration of
trademarks be indefinitely renewable.
A trademark is indefinitely renewable subject to payment of prescribed fee.
14. Please describe the special requirements, if any, prescribe by your legislation concerning
the use of a trademark.
Please see answer to question No. 12 above.
D. G
EOGRAPHICAL INDICATIONS
15. Please explain whether or not your trad emark registration authority refuses a
trademark application if it contains a geographical indication.
It does not as long as in so far it satisfies the requirements of a Certification Trademark.
16. Please give the definition of a geographical indication in your legislation.
In the current Law, except for a Certification Trademark, geographical indication is not
provided for. Certification Trademark means " A mark adapted in relation to any goods to distinguish
in the course of trade goods certified by any person in respect of origin, material, method of
manufacture, quality, accuracy or other characteristic, from goods not so certified shall be registrable
as a certification trademark in Part A of the register in respect of those goods in the name, as
proprietor thereof, of that person:
Provided that a mark shall not be so registrable in the name of a person who carries on a trade
in goods of the kind certified.
17. Please describe and explain the provisions of your legislation establishing a link, if any,
between the characteristic of an in dication and its geographical origin.
Please see answer to question No. 16.
18. Please describe how additional protection is granted by your legislation to wines and
spirits.  Please mention other types of products, if any, covered by this additional protection.
No protection except for Certification Trademarks.IP/C/W/344
Page 7
19. Please explain how exceptions under Article 24 of the TRIPS Agreement are used in
your jurisdiction.  Please provide examples of th e use of the exception by courts or list the
names considered as generic in your jurisdiction.
No exceptions in the Trademarks Act and protection is given in respect of Certification
Trademarks.
E. INDUSTRIAL DESIGNS
20. Please explain whether or not your legislat ion extends to the protection of designs
dictated essentially by technical or functional considerations.  Please explain how textile designs
are protected.
The nature of industrial designs under the law is  any combination of lines or colours or both,
and any three-dimensional form, whether or not associat ed with colours, is an industrial designs, 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.  See section 12 of the Patents and Designs Act as
notified.
Textile designs are protected by precluding a third party or any person without the owner's
consent from doing the following acts:
(a) Reproducing the design in the manufacture of a product
(b) Importing, selling or utilising for commercial purposes a product reproducing the
design;  and
(c) Holding such a product for the purpose of selling it, or utilising it for commercial
purposes.
21. Please explain how your legislation protects right holders of a design against importing
of articles bearing embodied or copied design.
See answer to question No. 20.
22. Please state whether or not your legislation provides for the right to issue a compulsory
licence for industrial designs.
It does not.
23. Please indicate for what period of time your legislation grants protection for industrial
designs.
For five years in the first instance and two further consecutive periods of five years each
making total period of 15 years.
F. PATENTS
24. Please describe how your legislation defines the notions of: novelty, inventiveness and
industrial application.
An invention:IP/C/W/344
Page 8
(a) is new if it does not form part of the state of the art;
(b)  results from inventive activity if it does not obviously follow from the state of the art,
either as to the method, the application of, the combination of methods, or the product
which it concerns, or as the industrial result it produces;  and
(c) is capable of industrial application if it can be manufactured or used in any kind of
industry, including agriculture.
See Section 1(2)(a)(b) and (c) of the Patents and Designs Act as notified.
25. Please explain whether or not in your legislatio n, patent or otherwise, patent rights are
enjoyed without any exclusions.  If exclusions a re provided for, please describe in detail how
these exclusions are applied in legal as well as practical terms.
Under the Patents & Designs Act as notified, pate nt rights are enjoyed with some exclusions.
Section 6(3) and (4) of the Act provides as follows.
The rights under a patent shall not extend to:(a) an act done privately and on a non commercial scale;
(b) the use of the invention for a scientific research, including experimentation on the
invention to test the invention or improve it;
(c) the use of the invention for teaching purpose;
(d) the preparation of medicines under individual prescription;  or
(e) experiments made for the purpose of seeking regulatory approval for the marketing of
a product after the expiration of a patent;
(f) an act done in respect of a product covered by the patent after the product has been
lawfully sold in any country, except in so far as the patent makes provision for a
special application of the product in which case the special application shall continue
to be reserved to the patentee not withstanding this paragraph;  and
(g) the use of articles on an air craft, a land vehicle or vessel of any other country which
temporarily or accidentally enters the airspace, territory or waters of Nigeria.
26. Please explain whether your legislation provide for the exclusion of inventions from
patentability based on ordre public or morality.  If so, please explain the relevant section of
your legislation and explain its formulation.  Please also explain if it has been applied in
practice.
Yes it does. Patents cannot be validly obtained in respect of inventions the publication or
exploitation of which would be contrary to public order or morality. See Section 1(4)(b) of Patents
and Designs Act as notified.
27. Please explain whether or not diagnostic, th erapeutic and surgical methods are excluded
from patentability in your legislation.  If so, please explain the relevant section of yourlegislation and explain its formulation.IP/C/W/344
Page 9
[No response received]
28. Please explain whether or not plants, animals and essentially biological processes are
excluded from patentability in your legislation.  If so, please explain the relevant section of your
legislation and explain its formulation.
Plants, animals and essentially biological processes are excluded from patentability.
Section 1(4)(a) of the Patents and Designs Act as notified, provides that patents cannot be validly
obtained in respect of plant or animal varieties, or  essentially biological processes for the production
of Plants or animals (other than microbiological processes and their products).
29. Please describe how micro-organisms, non-essentially biological processes,
microbiological processes and plant varieties are prot ected in your legislation.  Please explain, in
this respect, the relevant sections of your legislation.
They are not patentable under the Act, see Section 1(4) of Patents and Designs Act as
notified.
30. Please explain how your legislation protects  patent right holders against the importing
and against the offering for sale of a patented invention.
Patents and Designs Act provides for the protection of patents rights holders against the
importing and against the offering for sale of a pate nted invention.  Section 6(1) provides  that a
patent confers upon the patentee the right to preclude any other person from doing any of the
following acts:
(a) where the patent has been granted in respect of a product, the act of making,
importing, selling or using the product, or stocking it for the purpose of sale or use;
and
(b) where a patent was granted in respect of a process, the act of applying the process or
doing, in respect of a product obtained directly by means of the process, any of the
acts mentioned in (a) above.
The right holder of a patent has the right to institute legal action or commence legal
proceeding against an infringer of his patented products.  He may be granted damages for the
infringement of his patented product.  The patentee can assign his invention to an assignee. He also
grant licence to a licensee to work the invention.
The right holder can commercially exploit his invention and can also receive royalties from
government agencies for commercial exploitation of his patented invention.
A patentee has the right, if he so desires, to surrender his patented invention by making a
written declaration addressed to the Registrar of patents.
31. Please state if your legislation provides for patent products protection of pharmaceutical
and agricultural chemical products.  In the a ffirmative, please indicate the legal reference.
Yes it does, see Section 1 of the Patents and Designs Act.
32. Please clarify if the patent protection of a process, as provided for in your legislation,
covers the product obtained directly by that process.IP/C/W/344
Page 10
The Patents and Designs Act makes provision for the protection of a process which covers the
product obtained directly by that process. Section 6(1)(b) of the Act states that, where a patent was
granted in respect of a process, the act of applying the process or doing, in respect of a production
obtained directly by means of the process, every other persons is precluded from making, importing,
selling or using the product or stocking it for the purpose of sale or use.  The patentee has exclusivemarketing right, to commercial exploitation of the product of process of his patented invention.
33. Please explain the additional conditions, if any, in your legislation other than the
sufficient disclosure of the invention in Articl e 29 of the TRIPS Agreement (e.g submission of
justification for access to genetic material or prio r inform consent to its use).  If such additional
conditions exist, please point out the relevant le gislation and describe the additional conditions
in detail.
No requirement exist other than the sufficient disclosure of the invention.
34. Please describe if your legislation provides for limited exceptions to the exclusive rights
conferred by a patent.  If affirmative, please make a reference to relevant legislation.
The Patents and Designs Act makes provision for some exemptions, to the exclusive rights
conferred by a patent.  See Section 6(3)and (4) of the Act as notified.
35. Please explain whether or not your legislation provides for compulsory licensing.  If so,
please explain in detail the conditions under which a compulsory licence may be granted.  In
particular, please explain how your national le gislation considers individual merits in the
authorization of such use.
The Patents and Designs Act makes elaborate provisions for grant of compulsory licences.
This is provided for in detail in Section 11 and Part 1 of the first Schedule of the Act.
36. Please explain how your legislation explicitly ensures that a proposed user made efforts
to obtain authorisation from the right hold er on reasonable commercial terms and conditions
and that such efforts have not been successful within a reasonable period of time.  In this
context, how do you define "reasonable period of time".  Please also explain how your
legislation ensures that the use of a compulsory  licence shall be author ised predominantly for
the supply to the domestic market of the Member authorising such use.
A proposed user must satisfy the court that he has been unable to obtain a licence on
reasonable terms and with a reasonable time. Reasonable time is determined by the circumstances ofeach case. It does not, however, a provision in the draft bill in accordance with Article 31(f) of the
TRIPS Agreement has been included.
37. Please state if your legislation grants addi tional protection for innovations after the
20 years of patent protection has lapsed.
The Patents and Designs Act does not grant additional protection for innovations after the
20 years of the patent protection has lapsed.
38. Please explain how your legislation provides for the reversal of the burden of proof in
relation to process plants.
The Constitution of the Federal Republic of Nigeria provides that every person who is
charged with a criminal offence shall be presumed to be innocent until he is proved guilty.  However,
a law imposes upon any person the burden of proving a particular fact.IP/C/W/344
Page 11
G. LAYOUTS -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
39. Please describe how your legislation protects topographies.
It does not, however, the draft bill makes provisions for topographies in accordance with
Article 35 of the TRIPS Agreement.
40. Please explain what protection your national legislation grants to right holders against
the unlawful importation, sale or distribution for commercial purposes of topographies
including integrated circuits or other articles in which a topography is incorporated in
accordance with Article 36 of the TRIPS Agreement.
See answer to question No. 39.
41. Please explain how your legislation provide s for the derogation from Article 36 as
specified in Article 37 of the TRIPS Agreement where a person has no knowledge or reasonable
grounds to when requiring an integrated circuits or an article incorporating such an integrated
circuits that it contains an unlawful topography.
See answer to question No. 39.
42. Please state the term of protection granted by your legislation to topographies.
See answer to question No. 39.
H. PROTECTION OF UNDISCLOSED INFORMATION
43. Please explain whether or not your legislatio n grants a defined period of time for the
protection of undisclosed information.  If so, please give the time span.
It does not, however, a draft bill for unfair co mpetition makes provisions for the protection of
undisclosed information in accordance with Article 39 of TRIPS Agreement.
44. Please explain how your legislation defines "undisclosed information".
See answer to question No. 43.
45. Please explain how your legislation de fines data submitted to government or
governmental agencies.
Still liaising with relevant Government agencies for information.
I. ENFORCEMENT
46. Please describe how your legislation provides for effective action against infringement of
intellectual property rights.
Intellectual property rights are protected in the same way as other proprietary rights are
protected, e.g. payment of damages and issuance of injunctions.
47. Please explain whether or not your legislation provides for a mechanism to appeal to
judicial bodies of final administrative decisions.IP/C/W/344
Page 12
Any final administrative decision is appealable to the regular courts i.e. Federal High Court,
Court of Appeal and the Supreme Court.
48. Please describe how your legislation authorizes judges to order production of evidence
by the opposing party.  Please give precise information on what measures are taken to ensurethe protection of confidential information.
The system is the same as obtained in the Common Law system applicable in the United
Kingdom.
49. Please quote provisions of your legislation that authorize judges to order a defendant to
desist from an infringement.
In addition to inherent powers of superior courts under the Common Law Judges have power
to issue injunctions to enjoin a defendant to desist from an infringement.  It can be interlocutory or
final, e.g. Section 25 Patents and Designs Act Section 15 Copyright Act, as notified.
50. Please quote what provisions of your legislation authorize judges to order the payment
to the right holder of adequate damages to compensate the injury he suffered.
See answer to question No. 49.
51. Please quote what provisions of your legislation authorize judges to order the payment
to the right holder's expenses by the infringer.
See answer to question No. 49.
52. Please explain if and how judges have the au thority to order that infringing goods are
placed outside channels of commerce or destroyed.
The Courts have both statutory and inherent pow ers to order destruction of infringing goods,
e.g. Copyright Act, Costoms and Excise Act, Patents and Designs Act, and Merchandise Marks Act.
53. Please quote what provisions of your legislation authorize judges to indemnify a
defendant in the event of abuse by the plaintiff.
The Courts have powers to order plaintiff to give security for the purposes of indemnifying
the defendant who suffers loss as a result of the action of the plaintiff, e.g. Section 22 Copyright Act.
54. Please explain how your legislation implements Article 50 of the TRIPS Agreement.
The judicial authorities have the authority to order prompt and effective provisional measures
to:
(a) prevent an infringement of any intellectual  property right, from occurring, and in
particular, to prevent the entry into the channels of  commerce in their jurisdiction ofgoods, including imported goods immediately after customs clearance;  and
(b) preserve relevant evidence in regard to the alleged infringement.
55. Please identify the competent authorities in  your jurisdiction who receive requests from
right holders for an application to suspend the release of counterfeit goods by the customs
authorities.IP/C/W/344
Page 13
The competent authority in Nigeria who receives requests from right holders for an
application to suspend the release of counterfeit goods is the Comptroller General of Customs.
56. Please indicate whether or not procedures  are available to suspend the exporting of
counterfeit goods.
[No response received]
57. Please indicate whether or not your legislation provides for a de minimis  imports
exception.
[No response received]
58. Please explain how your legislation implements Article 61 of the TRIPS Agreement.
Both the Merchandise Act and the Copyright Act make provisions for criminal procedures in
respect of infringement of trademarks and piracy of copyright.
Additional question
Having noted that draft amendments to the intellectual property laws of Nigeria are
currently being considered by the Nigerian Gove rnment in order to meet Nigeria's obligations
under the TRIPS Agreement, please advice precis ely when the anticipated draft bills will be:
(a) promulgated in Nigeria, and
(b) come into operation as law in Nigeria.
The draft bills will be promulgated as Law no sooner than they are passed by the National
Assembly and assented to by Mr. President.
SWITZERLAND
A. TRADEMARKS
1. Please explain how your legislation implem ents Article 62.2 of the TRIPS Agreement.
Please indicate how long it takes on average to register a trademark.  Please cite the relevant
provisions of your law.
Any person proposing to apply for the registration of a trademark may apply to the Registrar
in the prescribed manner for advice as to whether the trademark appears to the Registrar prima-facie
to be inherently adapted to distinguish or is capable of distinguishing, as the case may be.  The
Registrar shall have the power to the give advice asked for in the application.  The person proposing
to apply will then apply to the Registrar for regi stration of the trademark in the prescribed form.
When an application for registration is accepted, the Registrar shall cause notice of the application as
accepted to be published in the Trademarks Journal, any person may within 2 months from the date ofthe publication give notice to the Registrar of his opposition to the registration of the trademark in a
prescribed manner.  The Registrar will then give an informed ruling on the matter after listening to the
parties involved in the matter. However, after the expiration of the 2 months period if there is no
opposition to the registration of the trademark, the proprietor of the trademark will apply in prescribed
manner to the Registrar for the certificate of registration of the trademark.  The registration is for aperiod of 7 years in the first instance and upon payment of the prescribed fee renewed for subsequentIP/C/W/344
Page 14
14 years.  The procedure for the registration is completed within a reasonable of time from the date of
filing the application for registration of the trademark.  See Trademarks Act as notified.
B. PATENTS
2. Does your legislation grant patent protection for inventions relating to products and
processes in all fields of technology? Are there an y exceptions?  If so, please explain what these
exceptions are and how they comply with Article 27 of the TRIPS Agreement.
It does provide for some exceptions.  The exceptions and the extent of compliance are
contained in Section 1(4) and (5) of the Act as notified.
3. Does your legislation, in accordance with Article 27.1 in combination with Article 31 of
the TRIPS Agreement, consider importation as "working" a patent (and therefore precludecompulsory licensing, if a product is being imported)?
[No response received]
4. Does your legislation make the granting of  a compulsory licence subject to all the
conditions enumerated in Article 31 of the TRIPS Agreement?  Please cite the relevantprovisions of law.
It does, see Section 11 and the first Schedule of the Act as notified.
5. Does your legislation provide for the principle of the reversal of burden of proof in a
process patent litigation?  Please cite the relevant provision of law.
The Constitution of the Federal republic of Nigeria provides that every person who is charged
with a criminal offence shall be presumed to be innocent until proved guilty.  However, a law imposes
upon any person the burden of proving a particular fact.
C. P
ROTECTION OF UNDISCLOSED INFORMATION
6. Please explain in detail if your legislation ensures that undisclosed test or data submitted
by an applicant to the responsible State agency in the procedure for market authorisation of a
pharmaceutical or of an agricultural chemical product is protected against disclosure and
against unfair commercial use by a competitor, for example by prohibiting a second applicant
from relying on, or from referring to the origin al data of the first applicant, when applying
subsequently for market authorisation for a similar product.  Does you legislation provide for
exceptions to this?  If yes, under what conditions would such exceptions apply?  Does yourlegislation set a specific term of protection for undisclosed test or other data of the first
applicant?
 Still liasing with relevant government agency for information if any.
D. E
NFORCEMENT
7. Please indicate remedies provided by your legislation which constitute effective
deterrents to infringements of intellectual property rights.
The relief to infringements of intellectual property rights is by way of damages, injunctions,
accounts or other wise as is available in any corresponding proceedings in respect of the infringementIP/C/W/344
Page 15
of other proprietary rights, e.g. Section 27 of the Patents and Designs Act and Section 15 Copyright
Act as notified.
8. Please describe any new initiatives that are planned to improve enforcement of
intellectual property rights in your country, particularly initiatives related to criminalenforcement.
A committee is studying the law with a view to  improving the enforcement of intellectual
property rights.
UNITED STATES
A. G
ENERAL
1. Please describe, in relation to each form of  intellectual property covered by the TRIPS
Agreement, including plant variety protection, the manner in which national treatment and
most favoured nation treatment are provided to nationals of other WTO Members.
Nigeria respects its obligations and practices by providing nationals of other WTO Members
with treatment that is in accordance with the TRIPS Agreement.
B. COPYRIGHT AND RELATED RIGHTS
2. Please explain whether and how the copyright law of Nigeria complies with Article 9 of
the TRIPS Agreement requiring that Members co mply with all Articles 1 through 21 of the
Berne Convention (1971), except Article 6bis, since Members do not have rights or obligations
relating to the latter Article under the TRIPS Agreement.
The legislation on copyright protection in Nigeria is the Copyright Act. It gives protection to
six classes of works including literary and artistic works which are very broadly defined.  The
provisions comply fully with Articles 1 through 21 of the Berne Convention and Appendix to the
Berne Convention (1971) as required by Article 9 of the TRIPS Agreement.
3. Please explain how the copyright law of Nigeria protects computer programs as literary
as works and complications of data as required by Article 10 of the TRIPS Agreement.
(a) Computer programs are defined and protected as literary works under the Copyright
Act. Authors of literary works are given the exclusive rights to control the doing in
Nigeria of any of the following acts:
(i) reproduce the work in any material form;
(ii) publish the work;
(iii) perform the work in public;
(iv) produce, reproduce, perform or publish any translation of the work;
(v) make any cinematograph film or a record in respect of the work;
(vi) broadcast or communicate the work to the public by a loudspeaker or any
similar device;IP/C/W/344
Page 16
(vii) make any adaptation of the work;
(viii) distribute to the public, for commercial purposes, copies of the work, by way
of rental, lease, hire, loan or similar arrangement;
(ix) do, in relation to a translation or an adaptation of a work, any of the acts
specified in relation to the work in sub-paragraph (i) to (iv) of this paragraph.
(b) Compilation of data;  these are protected as literary works.
4. Article 11 of the TRIPS Agreement requires that rental rights for computer programs
and cinematographic works be available.  Please  cite to the corresponding provision of the
copyright law of Nigeria.
The Copyright Act provides for rental rights.  It applies to literary and musical works,
cinematograph films, sound recordings and broadcasts.  In all cases the copyright owner has the
exclusive right to distribute to the public for commercial purposes copies of the work by way ofrental, lease, hire, loan or any similar arrangement.
5. Please state the length and terms of protection the copyright law of Nigeria provides for
a work other than a photographic work or a work of applied art and cite to the relevant
provision of law.
The length and term of protection of work other than photographic work is seventy years after
the end of the year in which the author dies; in the case of government or a body corporate, seventy
years after the end of the years in which the work was first published.  See the First Schedule of the
Copyright Act, as notified.
6. Please describe the protection the copyright law of Nigeria provides for performers, and
the term of the protection.
Performers' rights, referred to under the Copyright Act as neighbouring rights, are protected
under the Copyright Act.  A performer has the exclusive right to control the performance, recording,
adaptation, hire, broadcasting of his work as well as its reproduction in any material form. The rightof the performer subsists until the end of the period of fifty years from the end of the year in which the
performance first took place.
7. Article 14.2 of the TRIPS Agreement provides that producers of phonograms are to
enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms.
Article 14.2 requires that producers of phonograms are to have the right to authorize or
prohibit the commercial rental to the public of originals or copies of their phonograms.  Pleasedescribe how the copyright law of Nigeria implements these obligations and indicate the term of
protection.
[No response received]
C. T
RADEMARKS
8. Please describe the subject matter that can comprise a trademark under the trademark
law of Nigeria.IP/C/W/344
Page 17
The subject matter the can comprise a trademark includes a device, brand, heading, label,
ticket, name, signature, word, letter, numeral, or any combination thereof.  See Section 67 of the
Trademarks Act.
9. Please describe the procedure that must be followed to register a trademark in Nigeria,
citing the relevant provisions of the law, and de scribe the rights that the owner of a registered
mark can exercise.
The Procedure that must be followed to register a trademark in Nigeria is contained in the
Trademarks Regulations 23-65, Cap 436 Laws of the Federation of Nigeria, 1990.
Before a trademark agent/applicant lodges any trademark application for registration at the
Trade Marks Registry in Abuja, he could conduct a preliminary search to ascertain, whether, the markis available for registration or not.  If the proposed trademark is prima  facie  available for registration,
the agent/applicant fills the relevant Forms 2, 1 & 3, properly dated and signed by the applicant and
the agent.
Thereafter, the agent files the application form on payment of the prescribed fee.  The
Registrar shall then cause the application to be searched, vetted and processed as required by the
trademarks regulation.  Thereafter, Acknowledgement Letter of the receipt of the application for
registration is written and issued to the agent.  If  the mark is available for registration and is not in
conflict with any prior registered mark, then acceptance could be absolute or conditional as contained
in Regulation 34 of the Act.  Where the application for registration is accepted by the Registrar,whether absolutely or subject to conditions or limitations, the Registrar shall as soon as possible after
acceptance, cause notice of the application as accepted to be published in the Trademark Journal; and
the notice shall set out all conditions and limitations subject to which the application was accepted.
Any person may within 2 months of the publication file opposition to the registration of the mark.
But, where the trademark is opposed within 2 month from the date of the publication in the
Journal, the Registrar shall send a copy of the Notice of opposition to the Applicant who within one
month shall send to the Registrar in the prescribed manner a counter-statement stating the grounds on
which he relies for his application and failing to do so the application shall be treated as having been
abandoned.  But where the Applicant sent his Counter Statement, the Registrar shall furnish a copy
thereof to the opposer.  Both the Applicant and the opposer shall file Statutory Declaration within one
month of the receipt of the counter statement.
Thereafter, a hearing date shall be fixed and communicated to the parties.  On the hearing
date, the Registrar shall consider the evidence adduced, documents and exhibits tendered, and after
hearing the Parties, the Registrar shall deliver his reasoned ruling which is subject to Appeal at the
Federal High Court, Court of Appeal and up to the Supreme Court which is the highest court of theland.  The judgement of the Supreme Court is final in Nigeria.
The right, which the owner of a registered trade mark can enjoy, inter alia  includes:
(i) The Registered Proprietor enjoys exclusive right to the use of his mark in
relation to those goods.  (Section 5(1) of the Act).
(ii) The registered owner of the mark or sign has locus standi  in law to maintain
an action for infringement of his mark and can also maintain a passing off
action against any infringer of his trade mark, and can recover or be granted
damages and other remedies like interim injunction restraining the infringerfrom continuing acts of infringement. The injunction may also be perpetual
depending on the circumstances of the caseIP/C/W/344
Page 18
(iii) The Registrant has the legal power or right to assign his mark for any
consideration with or without good will.
(iv) The registered owner can also grant a licence on the mark.
10. Please provide the length and terms of prot ection that the trademark law of Nigeria
provides for a trademark.
A trademark is registered for a period of 7 years in the first instance and upon payment of the
prescribed fee renewed for subsequent periods of 14 years.
D. GEOGRAPHICAL INDICATIONS
11. Please describe in detail how the laws of Nigeria provide for the recognition and
protection of geographical indications required by Article 22.2 of the TRIPS Agreement, citing
to the relevant provisions of law or regulation, and provide examples of geographicalindications so protected.
Whereas the Act does not specifically provide for geographical indications, however, it does
provide for registration of Certification Marks.  See Section 43 of the Act.
12. Please describe in detail the manner in whic h the higher level of protection required for
wines and spirits under Article 23.2 of the TRIPS Agreement is implemented, citing to the
relevant provisions of law or regulation, and provide examples of geographical indications for
such products.
Currently no provision in the Act.
E. I
NDUSTRIAL DESIGNS
13. Please describe the procedure that must be followed to obtain protection for industrial
designs, citing to the provisions of the law of Nigeria, and describe the nature of the protection
provided.
Registrable industrial designs must be:
(a) new at the time of filing the application;  and
(b) must not be contrary to public order or morality.
Once the above requirements are met, the proposed industrial design shall be registrable in
law.
An application for the registration of an industrial design shall be made to the Registrar and
shall contain:
(i) a request for registration of the design;
(ii) the applicant's full name and address and if that address is outside Nigeria, an
address for service in Nigeria;
(iii) a specimen of that design or Photographic or graphic representation of the
design with any printed block;IP/C/W/344
Page 19
(iv) an indication of the kind of product for which the design will be used;  and
(v) the prescribed fee and where applicable a declaration signed by the true
creator, requesting that he be named as such in the Register and given his
name and address and if the application is made by an agent, a signed power
of attorney.
A single application may relate to any number of industrial designs not exceeding fifty where
the applicant for the registration of an industrial design seeks to avail himself of a foreign priority in
respect of an earlier application made in a country outside Nigeria a convention country.  The
applicant shall append to his application a written declaration showing:
(i) the date and number of  the earlier application;
(ii) the country of origin where the earlier application was made;  and
(iii) the name of the person who made the earlier application,  and
not more than three months after making of the application, the applicant shall furnish the
Registrar with a copy of the earlier application certified correct by the industrial property office (or its
equivalent) in the country, where the earlier application was made.
Examination of Application for Registration:
The Registrar shall examine every application for registration of an Industrial Designs as to
its conformity with the aforementioned requirements of  the Act.  If the application fails in any respect
to conform with the requirements, the Registrar sh all reject the application, and likewise, if the
application fails in any respect to conform with requirements for claimed of priority, the claim shall
be disregarded.  But, where the statutory requirements for registration are met, the design shall be
registered and certificate of Registration issued to the applicant.
The Registrar maintains a Register of Industrial Designs, which consists of the duplicate of
the registration certificates issued, together with such further matter as is required by the Act.  As
soon as may be, an Industrial Design is registered, the Registrar shall cause the design to be published
in the Journal.
The nature of the protection provided (or rights conferred) by the registration of industrial design.
Registration of Industrial Designs confers upon the Right Holder absolute right to use his
design exclusively and to preclude any other person from doing any of the following acts:
(a) Reproducing the design in the manufacture of a product;
(b) Importing, selling or utilizing for commercial purposes a product reproducing the
design, and
(c) Holding such a product for the purpose of selling it or of utilizing it for commercial
purposes.
The registration of a valid industrial design shall be effective in the first instance for five
years from the date of the application for registration of the design and thereafter, renewable for 2
further consecutive periods of 5 years each.IP/C/W/344
Page 20
14. Please describe the procedure that must be followed to obtain protection for textile
designs and cite to the relevant provisions of the law or regulation.
The procedure that must be followed to obtain protection for textile design is the same as that
of the Industrial Designs.  Once a design is validly registered and renewed as at when due, it shall
enjoy al the statutory protections available to a registered designs for a maximum period of 15 years.
See answer to question No. 13.
F. PATENTS
15. Please describe in detail the way in which the patent law of Nigeria implements
Article 27 of the TRIPS Agreement, indicating  any exceptions provided for, and including
details regarding the protection for micro-organisms and non-biological and microbiological
processes and plant varieties.  Please cite to the relevant provisions of the law.
The extent of implementing Article 27 of the TRIPS Agreement can be found in Section 1(4)
and (5) of the Patents and Designs Act.  However, the draft bill would offer some form of protection.
16. Please describe in detail the rights provided patent holders under the patent law of
Nigeria and cite to the relevant provisions of law.
Section 6(1) of the Patents and Designs Act provid es for rights conferred by patent holder.  A
patent confers upon the patentee the right to preclude any other person from doing any of the
following act:
(a) where the patent has been granted in respect of a product, the act of making,
importing, selling, or using the product , or stocking it for the purpose of sale or use;
(b) where the patent has been granted in respect of a process, the act of applying the
processor doing, in respect of a product obtained directly by means of the process,
any of the acts mentioned in paragraph (a) of this subsection.
17. Please describe in detail any provisions in the laws of Nigeria permitting unauthorized
use of a patent, citing to the relevant provisions of law, and describe in detail the conditions
under which such use can occur.
Under the Patents and Designs Act, patent rights are enjoyed with some exclusions.
Section 6(3) and (4) provides:
(3) The rights under a patent:
(a) shall extend only to acts done for industrial or commercial purposes;  and
(b) shall not extend to acts done in respect of a product covered by the patent after the
product has been lawfully sold in Nigeria, except in so far as the patent makes
provision for a special application of the product, in which case the special
application shall continue to be reserved to the patentee notwithstanding thisparagraph;
(4) where, at the date of filing of a patent application in respect of a product or process or at the
date of a foreign priority validly claimed in respect of the application, a person other than the
applicant:IP/C/W/344
Page 21
(a) was conducting an undertaking in Nigeria;  and
(b) in good faith and for the purposes of the undertaking, was manufacturing the product
or applying the process or had made serious preparations with a view to doing so,
then, notwithstanding the grant of a patent, there shall exist a right (exercisable by the
person for the time being conducting the undertaking, and not otherwise) to continuethe manufacture or application, or to continue and complete the preparations and
thereafter undertake the manufacture or application, as the case may be, and in
respect of any resulting products to do any other act mentioned in subsection (1) of
this section.
18. What term of protection does the patent law of Nigeria provide for patents?  Please
describe any provisions for extension of the term of protection and cite to the relevant
provisions  of the law.
The term of protection granted to patents in Nigeria is for a non-renewable period of 20 years
subject to payment of prescribed annual fees.
G. L
AYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
19. Please describe in detail the protection for layout-designs of integrated circuits provided
under the laws of Nigeria, including the term of protection, and cite to the relevant provisions of
law.
No law currently provides for protection of layout-designs of integrated circuits.  However,
the draft bill contains provisions for protection of layout-designs of integrated circuits in accordance
with Article 35 of TRIPS Agreement.
H. PROTECTION OF UNDISCLOSED INFORMATION
20. Please describe in detail how the laws of Nigeria provide for the protection of
undisclosed information as required by Article 39.2 of the TRIPS Agreement and provide
citations to the relevant provisions of law.
Presently there is no law in Nigeria as required by Article 39.2 of TRIPS Agreement.
However, the draft bill contains provisions for protection in accordance with Article 39.2.
21. Please describe in detail the manner in which protection is provided test data regarding
pharmaceutical and agricultural chemical prod ucts submitted to the government in order to
obtain marketing approval in Nigeria and cite to the relevant provisions of law.
Still liaising with relevant government agencies for details of such approvals.
22. Are other applicants for market approval for their own versions of a previously
approved pharmaceutical or agricultural chemical products permitted to rely on data submitted
by the earlier applicants?  If so, how long a period of exclusivity is given the earlier applicant
before such reliance becomes possible.
Still liaising with relevant government agencies for details of such approvals.IP/C/W/344
Page 22
I. ENFORCEMENT
23. Please describe in detail the manner in whic h the laws of Nigeria provide for effective
action against infringement of intellectual prop erty rights as required by Article 41.1 of the
TRIPS Agreement.
The law in Nigeria is both civil and criminal.  See for example, Copyright Act, Merchandise
Marks Act and Trademarks Act.
24. Article 43.1 of the TRIPS Agreement requires that judges be authorized to order
production of evidence necessary to substantiate a party's claims where that party has been
unable to obtain such evidence from the opposi ng party.  Please describe how the laws or
regulations of Nigeria provide this authorization,  citing to the relevant provisions of the law or
regulation.
The Courts Power order for discovery and inspection of documents and non-compliance with
order for discovery is contained in the Federal High Court (Civil Procedure) Rules 2000, Order 33
Rule 12, 20 and 22.
25. Please describe in detail all of the civil remedies that are available to right holders under
the laws of Nigeria, citing to the relevant provisions of law or regulation.
Civil remedies available to Right Holders under the laws of Nigeria inter-alia  include:
(a) Injunctions, interlocutory, perpetual, etc.
(b) Damages, including recovery of profits, etc.
(c) Destruction of infringing goods, materials and equipment for their production.
(d) Seizure and detention of counterfeit goods, declaration of abandonment of infringing
goods by the importer.
(e) Accounts of profits in respect of infringing goods.
(f) Forfeiture of prohibited goods.
(g) Indemnification of party wrongfully enjoined in the suit for infringement of IPRS.
(h) Sale by Public auction of abandoned or prohibited goods.  For example, Trademarks
Act, Copyright Act and Patents and Designs Act.
26. Please describe in detail the provisional procedures and remedies available to right
holder under the laws of Nigeria, citing to the relevant provisions of law and regulation, and
indicate any condition under which a right holder may avail itself of those procedures and
remedies.
Injunctions may be mandatory or prohibitive or may be interlocutory or final.IP/C/W/344
Page 23
J. SPECIAL REQUIREMENTS RELATED TO BORDER MEASURES
27. Please describe in detail the procedures under the laws of Nigeria that provide for
border enforcement at least for trademark counte rfeiting and copyright piracy, identifying the
competent authority and citing to the re levant provisions of law or regulation.
The owner of the copyright may give notice in  writing to the Department of Customs and
Excise stating that he is the owner in the work and requesting the Department treats as prohibited
goods, copies of the pirated work the notice shall not exceed a period of 5 years.  See Section 36
Copyright Act
A similar provision is made in the draft bill in respect of Trademarks in accordance with
Article 61 of the TRIPS Agreement.
28. Please indicate if border enforcement is available to owners of other forms of intellectual
property and, if so, please describe the procedures and remedies available in relation to each
form of intellectual property, citing the relevant provisions of law.
Except for the general powers granted to the Customs under the Customs and Excise
Management Act, there are no provisions.
29. Article 58 of the TRIPS Agreement specifies procedures to be followed where the
competent authorities can act ex officio.  Plea se explain whether the competent authorities in
Nigeria are empowered to act ex officio and, if s o, please identify the inte llectual property areas
subject to ex officio action.
Except for the general powers granted to the Customs under the Customs and Excise
Management Act, there are no provisions.
K. CRIMINAL PROCEDURES
30. Please describe in detail how the laws of Nigeria implement Article 61 of the TRIPS
Agreement that requires Members to have criminal procedures and penalties, including
imprisonment and/or monetary fines sufficient to act as a deterrent, at least for cases of wilful
trademark counterfeiting and copyright infringement  on a commercial scale.  Please cite to the
relevant provisions of law and regulation.
Wilful trademark and copyright infringement are both criminal and civil offences, criminal
infringement is punishable with a fine or imprisonment or both.  See Copyright Act and Merchandise
Marks Act.
31. Article 61 also requires that remedies in appr opriate cases include the seizure, forfeiture
and destruction of infringing goods and any materials and implements the predominant use of
which has been the commission of the offence.  Please describe the provisions in the laws of
Nigeria that provide for such remedies, and describe the circumstances in which those remedieswould be imposed, citing to the relevant provisions of law or regulation.
Both the Merchandise Marks Act and the Copyright Act empower the court upon conviction
for criminal counterfeit or infringement to order seizure and destruction of infringing copies and
materials or counterfeit goods, the equipments used in producing the infringing copies or goods.
32. Article 61 also indicates that Members may provide for criminal procedures and
penalties in cases of wilful infringement of oth er forms of intellectual property.  Please describeIP/C/W/344
Page 24
any provisions of the laws of Nigeria that provide for such procedures and remedies, citing to
the relevant provisions of law or regulation.
See answer to question No. 31 above.
L. STATISTICAL QUESTIONS
33. Please provide statistical information related to civil copyright, trademark, geographical
indication, industrial design, patent, integr ated circuit layout-design, and trade secret
enforcement for 2000, including the number of cases field; injunctions issued; infringing
products seized; infringing equipment seized; cases resolved (including settlement); and the
amount of damages  awarded.
Still liaising with relevant government agencies for statistical details.
34. Please provide statistical information related  to criminal enforcement in the area of
copyright piracy and trademark infringeme nt for 2000, including the number of raids,
prosecutions, convictions, and the amount of fines and/or jail terms (including whether the fines
were paid, and whether the jail term was actually served or was suspended) and any other
information establishing that the criminal syst em operates effectively to deter copyright piracy
and trademark counterfeiting.
Still liaising with relevant government agencies for statistical details.
__________