Consumer brands beware – NAFDAC and trade marks in Nigeria
Nigeria is one of Africa’s most prosperous, and fastest growing, economies. In fact, despite experiencing a recession in 2016, the International Monetary Fund predicts that not only will Nigeria’s economy recover during 2017, its growth is likely to exceed South Africa’s economic growth by a substantial margin during 2018.
On the downside, though, a fast-growing, consumer product driven economy, such as Nigeria’s, is a haven for illicit and counterfeit products and Nigeria in particular has the unfortunate reputation of being one of the most popular destinations for counterfeit pharmaceuticals. This is one of the reasons why it is so important for brand holders to register their trade marks in Nigeria.
But this is not the only reason why it is important for brand holders who manufacture goods in, or destined for, Nigeria, to register their trade marks. In a bid to combat illicit and sub-standard goods, particularly pharmaceuticals, being manufactured or sold in Nigeria the Nigerian government established the National Agency for Food and Drug Administration and Control (NAFDAC) in 1993.
The NAFDAC is responsible for regulating and controlling the manufacture, import, export, distribution, advertising, sale and use of food, drugs, cosmetics, medical devices, chemicals and packaged water. NAFDAC regulations require that anyone wanting to do any of these things with any products falling into these categories in Nigeria to register their product with NAFDAC and NAFDAC has prescribed different guidelines for each category of products, and for each sub-category within each category.
A common thread in the case of all categories of products is that in all instances the applicant must specify the brand names of the relevant product and must furnish proof of the registration of those brand names as trade marks in Nigeria.
This may seem fairly simple on the face of it, but it is important to note that the NAFDAC guidelines require proof of a registered trade mark in Nigeria and although the process of filing an application for registration of a trade mark is fairly quick, trade marks do not get registered overnight. In Nigeria it currently takes between 16 and 20 months after the date of filing for a trade mark to proceed to registration, and this is assuming that there are no unforeseen delays caused by examination or opposition proceedings, which arise frequently.
So, for planning purposes it is extremely important for brand owners wanting to enter the Nigerian market to ensure that their trade marks are registered well in advance of the anticipated product launch date. Failure to secure a trade mark registration will significantly delay the NAFDAC registration process and could result in substantial financial losses for brand holders who are prevented from selling their products in Nigeria until they have secured the requisite NAFDAC registration.
Aside from getting the necessary trade mark registration in place, the other requirements for securing a NAFDAC registration are onerous, to say the least, and they can be expensive because in many instances the applicant is required to submit results of product testing and, in the case of food products imported into Nigeria, for example, proof that they are licensed to manufacture food products in the country of origin and that the product does not contravene any relevant food laws in that country.
The obvious question is what happens if you don’t get your NAFDAC registration? Well, firstly, it’s a constitutional requirement. But if that isn’t motivation enough, the NAFDAC regulations empower the Nigerian government to shut down businesses manufacturing or otherwise dealing in products in Nigeria without having the necessary NAFDAC registrations in place. In many instances, they also entitle the government to seize and destroy products that do not comply with NAFDAC requirements. Aside from the obvious financial losses these consequences could result in a PR nightmare and potentially disastrous reputational damage.
Although obtaining a NAFDAC registration is a tedious and administratively intense process, the benefits of getting it done far outweigh the consequences of failing to comply.