A CYBERSQUATTER’S SHELTER: THE OUTDATED NIGERIAN TRADEMARK SYSTEM

Kehinde Takuro

3rd June, 2016.

INTRODUCTION

The Nigerian commercial sector like other countries of the world has indeed

changed in the past few years as not only are its citizens taking their off-line

businesses to the cyber space but there has been an unprecedented rise in the

number of internet based businesses and tech start-ups. A lot of unscrupulous

activities have also come from the desire to commercialise the internet and even

prevent others from doing the same. Cybersquatting is an apt example of an

unscrupulous activity that came with the e-commerce era.

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WHO IS A CYBERSQUATTER?

Image credit: intechnic.com

A cybersquatter is one who in bad faith intentionally registers a domain name based on the trademark of another to make profit or gain an advantage. (An example of a domain name is www.abcdefghij.org)

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CYBERSQUATTING ON SOCIAL MEDIA

• Facebook- Provision of forms for trademark owners and reacquisition of

usernames

• Twitter – Impersonation policy, suspension of accounts and verification of

accounts.

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CYBERSQUATTING IN CERTAIN JURISDICTIONS

Certain countries have aligned their trademark laws to deal with squatting on the

cyber sphere;

• South African Trade Marks Act is more expansive on the definition of a

trademark.

• Amendment of the UK Trademarks Act

• The U.S Anti-Cybersquatting Act.

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KINDS OF MOTIVE IN CYBERSQUATTINGMOTIVE CHARACTERISTICS PRACTICAL EXAMPLE

PROFIT-MAKING 

a) Demanding a sum of money for the resale of the domain name

The Linda Ikeji blog and cybersquatters situation.

  b)Using domain name to attract business to the site

The Jennifer Lopez case

COMPETITION ELIMINATION/STIFLING

Registration of domain name to prevent trademark owner who is from using such.

Ford Motor Co v. Ferrari.

MARRING OF REPUTATION Registration of a domain name to taint a trademark

The Career Agents Network issue.

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IS THE NIGERIAN TRADEMARK SYSTEM PROVIDING A SHELTER FOR THE “SQUATTER”?

• The restrictive definition of trademark in the Trademarks Act

• Necessity of registration of trademark.

• No specific remedy for infringement in the Act.

• Lack of appropriate enforcement agency.

• Little knowledge on trademark infringement on the cyberspace.

• No incorporation of international trademark treaties into the Act.

• The Nigerian Trademarks Act 1965 is based substantially on the U.K

Trademarks Act of 1938 which has been repealed.

These enumerated points provide an affirmative answer to the question above.

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RECOMMENDATIONS

• An amendment of the Trademarks Act

• Domestication of International Trademark related treaties

• Creation of a specialised statutory tribunal or functional alternative dispute

resolution body to deal with trademark infringement on the Cyber space.

• Restructuring of The Nigeria Internet Registration Association (NIRA) and

National Information Technology Development Agency (NITDA)

• Education and creation of awareness.

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CONCLUSION

It will be indeed hypocritical not to commend the recent enactment of the Cyber

Crime Act 2015 which provides penalties for cybersquatting. However, it is still

posited that despite the criminalisation of cybersquatting in Nigeria by this Act,

awareness, enforcement mechanisms and specific civil remedies such as recovery

of profits and statutory damages is of utmost importance in the Nigerian trademark

system to ensure the adequate compensation of a victim of this menace known as

cybersquatters.