Nigeria - Absence Of NAFDAC Registration May Disallow Trademark Owner From Bringing Successful Passing Off Action
In a recent ruling on an application for injunction to restrain infringement the Federal High Court held that where a drug has not been registered with the National Agency for Food and Drug Administration and Control [NAFDAC] then marketing or advertising of such drug in Nigeria was not lawful. Since lawful marketing or advertising in Nigeria could not occur, a trader could not acquire in Nigeria any reputation or goodwill in respect of such goods. Consequently an action for passing off could not succeed. Also, although the plaintiff (a foreign trademark owner) had filed a trademark application in Nigeria the trademark had not yet been registered and as a result the statutory right of action against infringement was also not available.
The Federal High Court after a hearing inter partes therefore discharged an order of injunction which it had earlier granted. The earlier order of injunction had been granted after a hearing ex parte. This decision serves to emphasise the importance of prompt registration of foods and drugs with the NAFDAC.
The National Agency for Food and Drug Administration and Control (NAFDAC) was established in 1992 and is charged with regulating and controlling the importation, exportation, manufacturing, advertisement, distribution, sale and use of food, drugs, cosmetics, medical devices, bottled water and chemicals. Since 1995 it has released the following regulations:
- Drug Products Advertisement Regulations
- Pre-packaged Food (Labeling) Regulations
- Bottled Water (Advertisement) Regulations
- Food Products Registration Regulations
- Bottled Water (Labeling) Regulations
- Cosmetic and Medical Devices (Advertisement) Regulations
- Bottled Water Registration Regulations
- Pesticide Registration Regulations
- Non-Nutritive Sweeteners in Food Products Regulations
- Non-Nutritive Sweeteners in Drug Products (Prohibition) Regulations
- Food Products (Advertisement) Regulations
- Food Grade (Table or Cooking) Salt Regulations
Under these regulations many foods and drugs may not be marketed or advertised in Nigeria unless they have been registered with the NAFDAC.