• Bill proposes life sentence for convicted counterfeiters in some circumstances
  • A fund to compensate victims of counterfeiting to be established
  • Move is “a welcome development” as Nigeria is Africa’s counterfeiting gateway

A bill in Nigeria has proposed a series of amendments to the country’s counterfeiting legislation, including life sentences for those convicted of selling certain types of counterfeit products. World Trademark Review spoke with market experts to gauge their reaction to the proposal, and found a mostly positive response.

The bill was submitted by Nigeria’s National Agency for Food and Drug Administration and Control (NAFDAC) and aims to amend the current Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Act. In addition to the introduction of life sentences for counterfeiters, importers and sellers of banned, fake or substandard drugs and unwholesome processed foods, the bill seeks to implement a number of new provisions and punishments. For example, it would enhance protections for whistle-blowers and open the door to stiffer punishments for those who aid and enable counterfeiters. Offending drugs and food products would be surrendered to NAFDAC, which would have the right to destroy them, and all proceeds from the crime would be forfeited, with NAFDAC being granted the ability to immediately trace the bank accounts of offenders. Interestingly, it would also create a fund to compensate victims who have directly suffered from the crimes.

Speaking to World Trademark Review, Obafemi Agaba, partner, and Chinwe Ogban, associate, at Jackson, Etti & Edu, stated that “the bill in its entirety is a welcome development”, adding: “The provision for life sentences for counterfeiters is apt given that these people endanger human life. The proposals for the forfeiture of assets of the convict and the creation of a victims’ compensation fund are also commendable.”

They also note that not many illegal activities in Nigeria are currently punishable by life imprisonment. The counterfeiting of gold and silver coins is one exception and Agaba and Ogban argue that “such punishments should be extended to [the] graver crimes of counterfeiting of drugs and unwholesome processed food, which have led to the death of many Nigerians”.

Carole Theuri, an attorney at Rouse, concurs with the sentiment and feels that the proposal, though extreme, “may be the ticket to deterring unrelenting offenders”. Indeed, the counterfeiting situation in Nigeria is so dire that a recent report by the International Chamber of Commerce’s Business Action to Stop Counterfeiting and Piracy (BASCAP) has labelled the country the “gateway to the rest of Africa for counterfeit products” – a problem compounded by “no IP protection, no proven protection by judicial precedents and slow court proceedings” in the jurisdiction. The Trademark Working Group (made up of representatives from both Fortune 500s and smaller brand owners) lists numerous Nigerian markets in its latest Review of Notorious Markets, and highlights the organised and sometimes violent resistance from purveyors of counterfeit goods in reaction to police raids.

According to Theuri, “some people think that a life sentence is too harsh for such offences, [especially as] some appear to be strict liability offences”. But there is precedent for such an approach. For example, Maysa Razavi, the anti-counterfeiting manager for the International Trademark Association (INTA), told World Trademark Review that the association believes all governments, including the Nigerian government, must strengthen anti-counterfeiting laws and enforcement, as “criminal enforcement creates much greater deterrence, in part through the creation of stigma and criminal records against infringers, and in part through the threat of incarceration”. She also points out, for comparison, that at the federal level in the United States, individuals can be imprisoned for life for counterfeiting that causes death.

Having passed the Senate, the bill currently sits before the House of Representatives and is likely to be passed into law. As Agaba and Ogban stress though, “its implementation will depend on the ability of NAFDAC to properly harness the provisions and the ability of the court to remain steadfast in its duties”. For now, this is one of several IP developments in Nigeria for interested parties to keep an eye on.