This article takes a cursory look at the role of the National Agency for Food and Drug Administration and Control (NAFDAC) in protection of trade marks rights in Nigeria.
NAFDAC: ITS MISSION AND OBJECTIVES
The National Agency for Food and Drug Administration and Control is a body established by the NAFDAC Act, CAP N1, LFN 2004 to regulate and control the importation, exportation, manufacture, advertisement, distribution, sale and use of food, drugs, cosmetics, medical devices, packaged water and chemicals generally known as “regulated products”. All products listed as regulated products under the Act are required to be registered with NAFDAC before they can be legitimately marketed or sold in Nigeria.
The mission of NAFDAC is to safeguard public health by ensuring that only the right quality drugs, food and other regulated products are manufactured, imported, distributed, advertised, sold and used in Nigeria. In other words, the Agency’s objective is to prevent counterfeit, unwholesome and/or substandard products from reaching the Nigerian market. Hence, the requirement to register regulated products with NAFDAC so as to undergo keen scrutiny before they can be legitimately manufactured, marketed, imported, exported or used in Nigeria
NAFDAC categorizes registration of products basically into two divisions being imported products and locally made products. Again, each division is further sub-divided into classes such as Drugs, Foods, Cosmetics, Medical Devices, Herbal Products etc.
There are several stages involved in the registration of products with NAFDAC which require strict compliance. Detailed information concerning the Procedure and Documentation required for NAFDAC registration can be found at the NAFDAC website: https://www.nafdac.gov.ng
In view of the mission and objectives of the Agency stated above, the role of NAFDAC is not focused primarily on the protection and enforcement of trade mark rights BUT on safeguarding public health.
However, a look at the documentation and requirements for NAFDAC registration and one constant feature or requirement for product registration of whatever kind, is a proof of a registered trade mark with the local Trade marks Registry in Nigeria. The objective of this is to establish the proprietor of the product trade mark.
The essence of a trade mark is to ensure the distinctiveness of the goods of one proprietor from those of others, thus checkmating counterfeiting. It also enables the consuming public to distinguish a genuine product from a fake product, since it depicts the authenticity and source of products and services.
A foreign Trade mark Proprietor/Manufacturer of product will undertake NAFDAC product registration through a Local Agent. A Power of Attorney notarized by a Notary Public in the country of origin issued by the trade mark proprietor to the local agent is required. This authorizes the Local Agent to act on behalf of the Proprietor/Manufacturer in respect of the product registration and specifies the brand name(s) of the product(s)
Due to the prolonged process of trade mark registration which at times may span some years, this requirement for evidence of trade mark registration is satisfied, by providing evidence of trade mark application in Nigeria. The minimum document acceptable to NAFDAC is a Notice of Acceptance of application to register the trade mark. Failure to secure a trade mark registration is fatal to NAFDAC registration, trade mark registration being a condition precedent to NAFDAC registration.
This NAFDAC imperative for local registration of trade marks has become one of the diverse strategies to combat trade mark infringements in Nigeria, unwittingly making NAFDAC one of the agencies involved in IPR protection. The registered proprietor of a trade mark is expected to take proper ownership to protect products branded with its marks; that is, protection from infringement and “passing-off”. Whenever there is any offending product found on the market, the initial suspect is the registered proprietor of the trade mark/brand owner.
Where an infringed trade mark is used in respect of a product, regulated by NAFDAC, a petition can be presented to NAFDAC by the legitimate owner who may request for the de-registration of the product on grounds that the trade mark under which it was registered belongs to them. The Federal Government, has in the past, given directive to the NAFDAC to deregister all products registered under the trade marks of foreign manufacturers without their consent. Sequel to this directive, NAFDAC, acting on the petitions sent by local attorneys on behalf of their clients, de-registered several products registered for local companies.
NAFDAC has an Enforcement Directorate that conducts “dawn raids” and is empowered to seize, detain and destroy counterfeit products in circulation or products that do not comply with NAFDAC registration requirements. The police squad attached to this Directorate is authorized to arrest any person suspected of committing an offence under the NAFDAC Act. Also, where counterfeit product is detected (a red flag that a product is counterfeit is the absence of a NAFDAC registration number), NAFDAC investigates the products beyond the warehouse to the manufacturer, examines the product and through laboratory analysis the Agency can confirm that the product is indeed counterfeit. Once this is established, the legal department prosecutes offenders in court.
Where any person contravenes the provisions of any regulations made under the Act, such a person is guilty of an offence and liable on conviction to the penalties specified in the regulations. Subject to the power of the Attorney-General of the Federation to institute, continue or discontinue criminal proceedings against any person in a court of law, any officer of NAFDAC may, with the consent of the Attorney–General of the Federation, conduct criminal proceedings in respect of offences under the NAFDAC Act or its regulations.
NAFDAC operations have become very effective in demonstrating a national will to arrest the spate of counterfeiting. IP clients and their lawyers now have recourse to direct NAFDAC Enforcement Directorate to prosecute counterfeiters of Clients’ trade marks unlike in the past, where they were exposed to protracted discovery processes and litigation to prosecute counterfeiting.
Although the main function of NAFDAC is not to enforce or regulate trade mark rights, yet NAFDAC has proven to be a fulcrum in strengthening and enforcing trade mark rights in Nigeria. Thus, Trade mark proprietors/owners can ‘ply the regulatory route’ of NAFDAC to protect their rights in general and to specifically prevent the circulation of goods that counterfeit/infringe their genuine products.
It is also hoped that there would be greater collaboration between the Trade marks Registry and NAFDAC to ensure optimal protection of trade mark rights in Nigeria.