Exploring the Juridical Limits of Name Sharing in Trade Mark Law & Practice

Description

ABSTRACT

Exploring the Juridical Limits of Name Sharing in Trade Mark Law & Practice

Adebambo Adewopo*

In seeking to preserve the sanctity of the trademark, the exclusivity rule affords a trademark owner an exclusive right to the trademark. It prohibits third parties from using or registering an identical or similar trademark. This fundamental principle underscores the essential function of a trademark as the ultimate symbol of origin. It is reinforced in the marketplace by psychology, which frowns at sharing the same or similar trademark with others to afford a trademark owner the full complements of the exclusive rights to the trademark. The trend of sharing the same-name by different undertakings presents a contradiction in terms and has continued to stretch the frontiers of trademark law and its regulatory role in commercial activities, particularly in the rapidly growing and competitive Nigerian market environment. This article deconstructs the juridical bases for sharing the samename and posits that such use is not inconsistent with established tenets of trademark law and practice. It surveys the legal landscape of name-sharing in the essential circumstances where entities may be permitted to use the same trademark for the same or different products. The article situates and rests the existing law and jurisprudence of trademark-sharing on two pillars: the classical trademarkfunction and the bona fide use principles.

Keywords: Trademarks, name-sharing, trademark use, bona fide use, Trademarks Act

INTRODUCTION
Fundamentally, trademark has established itself as the universal and dynamic instrument of commerce in the hands of entrepreneurs and traders, and as cases show, it is deployed almost in infinite ways to denote and signify what they want it to denote and signify. The entire legal architecture for trademark protection that is purpose-built for marketing products to prevent the use of identical and resembling marks is historically meant to identify and distinguish various products presented in the marketplace. This demonstrates how trademark law seeks to match the subtleties of innovative marketing with the importance of trademark itself as the singular symbol of identity in commercial trends and practices. The Nigerian commercial environment has never been more dynamic, mainly concerning the use of trademarks deployed in the marketplace. This is significant to the rapidly growing economy regarding the diverse types of trademark disputes arising across different product sectors. Ironically, with a relatively higher turnover of trademark cases than other intellectual property rights disputes, Nigerian trademark jurisprudence, though still evolving, has not been sufficiently robust as it ought primarily because trademark cases mainly terminate at early₁

*Professor and Senior Advocate of Nigeria, Nigerian Institute of Advanced Legal Studies. Of Counsel, L & ALegal Consultants.

1. See Adebambo Adewopo, ‘Role of the Court in the Interpretation and Development of Intellectual property law: the Nigerian experience’ (2015) 6(5) GRBPL1-18.

THE GRAVITAS REVIEW OF BUSINESS & PROPERTY LAW Vol.14 No.1