TRADEMARK IN FASHION AND DESIGN: CONTEMPORARY CHALLENGES AND GAPS IN THE NIGERIAN LEGAL FRAMEWORK

1. ABSTRACT

The Nigerian Fashion industry is rapidly projecting the country’s cultural expression and style globally. This article examines the challenges with the current trademark protection as provided under the Nigerian legal framework, for designers and their brands in the face of contemporary issues in fashion and design ranging from, artificial intelligence, digital creation, protection in the digital space to infringement on trademark rights. This research evaluates whether the extant trademark and design laws are adequate to protect fashion, designs, brands and commercial interest of designers in the era of Artificial Intelligence and digital activities. This research adopts the doctrinal research methodology to assess the Trademark Act, Patent and Designs Act and judicial precedents. This study finds that the current laws on trademark and design are inadequate for the protection of trademarks against activities of AI or digital space infringements. This research contributes to the increasing discussion on contemporary trademark challenges while making useful suggestions on trademark rights and protection.

Keywords: Brands, designers, designs, fashion, infringement, protection, trademark.

2. INTRODUCTION

The Fashion industry in Nigeria is rapidly evolving from just a creative sector to a significant force in the economic growth of the country, creating employment, generating revenue and presenting the country’s cultural expression to the world.

In recent times, the Nigerian fashion industry has evolved from a domestic means of cultural expression into a commercialized and internationally recognized economic tool. The Nigerian fashion industry is now valued at over 6 billion dollars annually, contributing significantly to the GDP of the country[1] and a huge impact on the Sub-Saharan African economy[2]. In Nigeria, there are a plethora of contemporary fashion designers and brands gaining relevance globally, some of which are, Toyin Lawani, Veekee James, Mai Atafo, Yomi Casual, Deola Sagoe, Lisa Folawiyo[3], and others who are currently presenting the Nigerian cultural expression through their brands across borders, on the global runways and in the digital space.

This article explores provisions of the current Nigerian laws and how the courts and institutions have interpreted these provisions in the face of real cases on protection of fashions and designs of registered and known trademarks. The central question examined in this article is whether current laws on trademark in Nigeria are sufficient to protect the fashion brands and designers in the face of artificial intelligence and digital commerce.

This research is crucial as allegations of fashion and design theft continue to proliferate across digital platforms and discussions on the ownership and protection of works generated by artificial intelligence continue to abound. Thus, understanding the current challenges faced by fashion designers and brands over the protection of their trademark and the challenges faced in contemporary times under the provisions and interpretations of the existing laws is important for lawyers, judges, digital creators, artificial intelligence developers, policymakers, lawmakers and scholars in law and intellectual property sector.

This article examines the standing definition of Trademark, Fashion and Design, evaluates the interpretation of these terms through laws and judicial precedents, analyses the effects of these interpretations and provisions and concludes and provides suggestions for law and policy reform.

CONCEPT OF TRADEMARK, FASHION AND DESIGNS

A Trademark is any sign or any combination of signs used to distinguish the goods and/or services offered by one undertaking from those offered by another[4].

In Nigeria, trade mark means except in relation to a certification trade mark, a mark used or proposed to be used in relation to goods for the purpose of indicating, or so as to indicate, a connection in the course of trade between the goods and some persons having the right either as proprietor or as registered user to use the mark, whether with or without any indication of the identity of that person, and means, in relation to a certification trade mark, a mark registered or deemed to have been registered under section 43 of this Act[5]. Trademark is granted for a period of seven years initially and can be renewed from time to time[6].

What then is a mark? A mark includes a device, brand, heading, label, ticket, name, signature, word, letter, numerical or any combination thereof[7].

Examples of trademarks are generally, word marks, sound marks, smell and texture marks, hologram marks, colors, figurative elements[8].

Fashion is the prevailing style of clothing, accessories and behaviour within a specific culture and time period[9]. It is a dynamic form of personal and cultural expression, communicating identity, social status and creativity.

Design has been defined to mean, to create, fashion, execute or construct according to plan, to make a drawing, pattern or sketch[10].

Under the Nigerian laws there is no meaning for designs, what the law provides for is industrial design which is seen as any combination of lines or colours or both, and any three-dimensional form, whether or not associated with colours, is an industrial design, if it is intended by the creator to be used as a model or pattern to be multiplied by industrial process and is not intended solely to obtain a technical result[11]. These designs are registrable if, it is new and it is not contrary to public order or morality[12]. An industrial design upon registration is valid for five years and renewable for two consecutive period of five years[13].

LEGAL ANALYSIS

The World Intellectual Property Organisation has international framework for protection of trademarks and designs under its TRIPS agreement, Madrid System and Trademark Treaty Law[14], for trademarks and the Hague System and the Paris Convention[15].  

In the world of fashion and designs, trademark is important for brand recognition and protection of the commercial reputation of such brand or design. A registered trademark affords the brand an exclusive ownership and commercial exploitation of the designs and fashions under it. In reality however, there are difficulties in the enforcement of trademark rights against infringements especially in the digital world of today and in view of the territorial nature of IP rights, it becomes a daunting task to effectively monitor and enforce trademark rights against infringements globally.

Fashion and Design Ownership Conflicts

The popular annual film and fashion event of the Africa Magic Viewer’s Choice Awards (AMVCA)[16] sponsored by DSTV has brought to light the deep issues in fashion and design brands, yearly there are cases of design theft by brands calling out the others on social media platforms. Fashion designers would usually claim they drew inspiration from another design or sketch to represent similar style and the question of where the line is drawn between inspiration and design theft is often begged. The globalization of market and digital commercialization has also exposed fashion and design to counterfeit and theft, it has become very easy to gain access to designs and names of brands and designers just by a click on the internet. For example, Pinterest, Jumia, Temu, Shein, are platforms that provides quick and easy access to the fashion expression of designers and fashion brands that are popular and thus imitation may abound particularly due to the territorial nature of trademark and design protection.

Artificial Intelligence and Digital Activities

The current wave of artificial intelligence activities has also spiked the advent of similar designs by designers and brands, thus, there are legal concerns of infringement through data training, due to the fact that artificial intelligence tools are built on already available information in each industry where questions or activities are required of it. From this year’s AMVCA fashion display, there were issues of design theft. The Ghanaian actress Nana Akua Addo dressed in the cathedral dress by her designer Abbass Woman were subsequently dragged by a Cambodian fashion brand, Almee Couture for obtaining the design sketch without their consent[17]. Also, Nigerian actress Toni Tones adorned a gold fashion dress by Dejavuu which was later dragged as an imitation of the design by Hayden Williams created for Hollywood actress Teyana Taylor.  

Also, internet use has raised issues relating to physical boundaries and global accessibility where similar goods and trademark may coexist in different countries and easily confuse the consumers as to the difference in trademark or goods[18]. There is also the issue of digital commercial advertisement which uses search engines to direct consumers to specific brands who uses particular keywords to drive sales to such business only due to the similar and conflicting trademark or brand identity and even the use of misleading domain names conflicting with registered trademarks. These challenges can also result in unfair advantage like free-riding of well-known trademarks.[19]

CASE LAW DISCUSSION

The case of Ferodo Limited & Anor.  v Ibeto Industries Limited[20]

In this case, Ferodo sued Ibeto for copying its brake pad packaging claiming trademark infringement and passing off, both companies used designs with red, black and white colors with checkered strips which could lead to consumer confusion of both designs. The court held that it was only the word “Ferodo” which was a registered trademark and not the colour combination or packaging and that there was no likelihood of confusion as each product was clearly marked with distinct names that a reasonable customer would not mistake it for another. This decision illustrates the limitation Nigerian Trademark protection where a claimant seeks protection for colour combination that have not acquired sufficient distinctiveness.

The case of Rites Foods Limited v Mamuda Beverages Nig Ltd[21] 

In this case Rites food brought a trademark infringement action against with the claim that the defendant’s pop power energy drink has a striking resemblance with its fearless energy drink, the court granted a term of settlement where the defendant agreed to modify the design of its energy drink before resuming production and sale. Although, the case was settled amicably via terms of settlement, it shows the possibility of trademark dispute with regards to industrial designs with similarity as to cause confusion for consumers.  

The case of Christian Louboutin S. A. v Yves Saint Laurent[22]

In this case, Louboutin sued YSL for its monochromatic red shoe, initially, a New York district court ruled that no single colour could be trademarked in the fashion industry due to aesthetic functionality. However, the U.S court of appeal held that red sole could be a valid trademark provided the red sole contrast with the upper part, holding that Louboutin owns the exclusive right to a red lacquered sole. Although not binding on Nigerian courts, the decision offers persuasive authority on the possibility of protecting distinctive colour marks within the fashion industry.

CRITICAL ANALYSIS/FINDINGS

An examination of the current laws on trademark and design protection exposes challenges and gaps that downplay the existence and effect of these laws in relation to fashion and design.

First, designs registration can be done by anyone whether he is the true creator or not[23], this provision makes it easy for just anyone to steal a design from the digital space and proceed to register it under their trademarks or brand without the consent of the true creator. This provision provides a leeway for theft and is not proactive in preventing design theft.

What this means is that some of the fashion brands mentioned earlier in this article are prone to their designs being stolen and registered by someone else even outside the territory and then it becomes a tedious work to monitor and enforce their rights against such person in view of the territorial nature of the right. As in the AMVCA scenarios which were trademark and design infringement across territories and involving sketches and designs as against the actual expressions of the designs.

Also, application of trademark laws to trademark infringement cases has shown a reluctance with recognition of generic colour marks by the court as in the case of Ferodo and Louboutin. The Nigerian trademark and design laws especially have not envisaged the contemporary issues with artificial intelligence and digital commerce where specific colour marks of designs and fashions of brands with registered trademarks are prone to be cloned. The current Nigerian laws on trademark specifically recognizes trademarks and designs upon its actual expression, this leaves the question as to what happens to sketches and plans of designers and fashion artists.

Further, it is now very easy for a third party to set up domain names similar to specific fashion trademarks with the aim to confuse the consumers and thus channel consumers to its domain site to the disadvantage of the trademark owner. The laws have no proactive provisions guiding against this sort of situation, what the trademark owner or brand owner is left with is more of a reactive procedure to arrest the violation and salvage the situation.

Finally, the digital growth of market place has made monitoring and enforcement of trademark rights by designers and brands more cumbersome and financially consuming and while bigger brands may be able to keep up with enforcement, smaller brands may not have that luxury of time and money and this is one of the reasons for the dearth in trademark infringement cases in Nigeria.

CONCLUSION

It is evident that fashion has gone beyond mere personal or cultural expression to become a medium for global recognition and participation for nations and their talented designers and brands. These trademarks owned by the fashion designers are more than just names or marks but more of business reputation and good will for the brands and it can make or mar the business of the fashion designer. A registered trademark generally gives the owner legal assurance of protection and enables the owner to be defend his or her fashion and design from violations and exploitation.

However, the current wave of artificial intelligence and digital activities continue to present contemporary challenges like free-riding, counterfeits, misleading domain and cyber theft and gaps for the legal framework to fill for the legal protection and development of brands in the fashion industry.

The Nigerian trademark and design protection regime has not evolved at the same pace as technological and commercial advancements. Legislative reform is therefore desirable to address contemporary challenges posed by artificial intelligence, digital commerce, cyber infringements and cross-border protection and enforcements. It is pertinent that legislative reform be embarked on taking leave from the developed and sophisticated jurisdictions like the United States and the European countries and also combining the laid down provisions of the World Intellectual Property Organization protocols, treaties and conventions. 

The world is moving towards globalization and it is imperative for the legal framework on intellectual property, specifically trademark and design laws to evolve towards a unified and harmonized structure of trademark and design protection and enforcement beyond the current territorial limitations.

BIBLIOGRAPHY

Table of Cases

Christian Louboutin S. A. v Yves Saint Laurent 696 F.3d 206 [2d Cir. 2012]

Ferodo Limited & Anor.  v Ibeto Industries Limited [2004] 5 NWLR (Pt.866)317

Rites Foods Limited v Mamuda Beverages Nig Ltd FHC/ABJ/CS/139/2025 per Inyang Ekwo J.

Table of Legislation

Patents and Designs Act, 1971

Trade Marks Act, 1967

Journal Article

Byron Ibijoke Patricia, ‘The Importance of Trademark Protection in Nigeria’, Akungba Law Journal, Adekunle Ajasin University, Vol. 5, No.1, 2017

Nwotite, Iguh & Onwugbolu, Challenges of Trademark Protection laws to the Nigerian Economy, NAUJILJ, Vol. 16, No. 1, 2025

Online Article

African Development Bank Group, ‘Fashionomics: Investing in the Creative Industries’ (African Development Bank Group) www.afdb.org accessed on June 4, 2026.

Brown Ajuluchukwu, ‘Fashion Industry Contributes $6.1 billion to Nigeria’s GDP’ (Guardian newspaper, 2024) https://guardian.ng/news/fashion-industry-contributes-6-1b-to-nigerias-gdp-minister/ accessed on June 4, 2026.

Enendu Chiamaka, ‘Dress made from 500 loaves stuns African film awards’ (BBC, 2026) https://www.bbc.com/news/articles/c4g0d3d5zn4o accessed on June 5, 2026.

Kanu Uwaezu, ‘AMVCA 2026: Laura Ikeji, Nana Akua Addo, Toni Tones accused of design theft’ (Premium Times, 2026) https://www.premiumtimesng.com/entertainment/naija-fashion/878914-amvca-2026 accessed on June 5, 2026.

Merriam Webster Dictionary, ‘Design’ (Merriam Webster Dictionary ,2026)  https://www.merriam-webster.com/dictionary/design accessed on June 5, 2026.

Nigeria Everywhere, ‘Top 20 Nigerian Fashion Designers to Watch In 2025’ (Nigeria Everywhere, 2025) https://nigeriaeverywhere.com accessed on June 4, 2026.

Okeibuno Ngozi Augustina, ‘Trademark Protection of Trade Dress in the Nigerian Luxury Fashion Industry’ (Record of Law, 2026) https://www.recordoflaw.in accessed on June 4, 2026

Rome Business School, ‘What is fashion’ (RBS, 2026) https://romebusinessschool.com/blog/what-is-fashion/  accessed on June 5, 2026.

World Intellectual Property Organisation, ‘Trademarks’ (WIPO, 2019) https://wipo.int/en/web/trademarks

World Intellectual Property Organisation, ‘WIPO-Administered Treaties’ (WIPO, 2023) https://www.wipo.int/en/web/treaties/ip/paris/index accessed on June 4, 2026.

[1] Ajuluchukwu Brown, ‘Fashion Industry Contributes $6.1 billion to Nigeria’s GDP’ (Guardian newspaper, 2024) https://guardian.ng/news/fashion-industry-contributes-6-1b-to-nigerias-gdp-minister/ accessed on June 4, 2026.

[2] African Development Bank Group, ‘Fashionomics: Investing in the Creative Industries’ (African Development Bank Group) www.afdb.org accessed on June 4, 2026.

[3] Nigeria Everywhere, ‘Top 20 Nigerian Fashion Designers to Watch In 2025’ (Nigeria Everywhere, 2025) https://nigeriaeverywhere.com accessed on June 4, 2026.

[4] World Intellectual Property Organisation, ‘Trademarks’ (WIPO, 2019) https://wipo.int/en/web/trademarks

[5] Trade Marks Act, 1967, s 67

[6] Ibid, s 23

[7] Ibid.

[8] Supra (n 4)

[9] Rome Business School, ‘What is fashion’ (RBS, 2026) https://romebusinessschool.com/blog/what-is-fashion/  accessed on June 5, 2026.

[10] Merriam Webster Dictionary, ‘Design’ (Merriam Webster Dictionary ,2026)  https://www.merriam-webster.com/dictionary/design accessed on June 5 accessed on June 5, 2026.

[11] Patents and Designs Act, 1971, s 12

[12] Ibid, s 13.

[13] Ibid, s 20.

[14] Supra (n 4)

[15] World Intellectual Property Organisation, ‘WIPO-Administered Treaties’ (WIPO, 2023) https://www.wipo.int/en/web/treaties/ip/paris/index accessed on June 4, 2026.

[16] Chiamaka Enendu, ‘Dress made from 500 loaves stuns African film awards’ (BBC, 2026) https://www.bbc.com/news/articles/c4g0d3d5zn4o accessed on June 5, 2026.

[17] Uwaezu Kanu, ‘AMVCA 2026: Laura Ikeji, Nana Akua Addo, Toni Tones accused of design theft’ (Premium Times, 2026) https://www.premiumtimesng.com/entertainment/naija-fashion/878914-amvca-2026 accessed on June 5, 2026.

[18] World Intellectual Property Organisation, ‘Trademarks’ (WIPO, 2019) https://wipo.int/en/web/trademarks

[19] Ibid

[20] Ferodo Limited & Anor.  v Ibeto Industries Limited [2004] 5 NWLR (Pt.866)317

[21] Rites Foods Limited v Mamuda Beverages Nig Ltd FHC/ABJ/CS/139/2025 per Inyang Ekwo J.

[22] Christian Louboutin S. A. v Yves Saint Laurent 696 F.3d 206 [2d Cir. 2012]

[23] Patent and Design Act, 1971, s 14 (1)