Authored By: Boladale Bolarinde Adelowo
KolaDaisi University
Ask any brand owner what keeps them up at night these days, it is rarely a rival shop opening down the street but a fake listing on an e-commerce site, a domain name registered by a stranger overnight, or an AI tool spitting out a logo that looks suspiciously familiar. Trademark law was originally built for a world of physical goods, local markets, and identifiable sellers, a world where infringement usually meant a person could be found, a shop could be raided, and a market could be pinned down to a city or a country. The internet did not just stretch that world, it broke a lot of the assumptions holding it together. Speed, scale, anonymity – none of these were part of the original design brief for trademark enforcement, and the gap between what the law expects and how commerce actually happens now keeps getting wider every year.
In late 2025, to reform IP governance, the Federal Government of Nigeria and the World Intellectual Property Organization (WIPO) collaborated together to develop Nigeria’s National Intellectual Property (IP) Policy 2025 towards modernising the country’s fragmented IP framework across the scientific, creative, digital, and agricultural sectors, aligning it with global commercial standards.
Nigeria’s intellectual property regime rests on three main statutes; the (Copyright Act 2022), the (Trademarks Act Cap T13, LFN 2004), and the (Patents and Designs Act Cap P2, LFN 2004), none of which were drafted with e-commerce platforms, influencer marketing, or Non-Fungible Tokens (NFTs) in mind. That is not a criticism unique to Nigeria, it is a problem playing out in courtrooms from Delhi to New York.
This article walks through where the strain is showing the hardest and what is being tried in response.
First, What Are We Actually Protecting?
Intellectual property law exists because ideas, inventions, and brand identities have value, and the law aims to ensure the people who created that value can control it. Intellectual property (IP) is not restricted to a privileged few, it is a fundamental right available to everyone. What activates this right however, is not the mere fact of being creative, but the existence of something concrete to protect, that is, an expression of ideas born from one’s own ingenuity. It is not one uniform right, patents, copyright, and trademarks each guard something different, and mixing them up is a common and costly mistake.
At its simplest, intellectual property refers to creation of the mind: intangible works that derive their value from human creativity and innovation.
Patents reward inventors who come up with something genuinely new; a device, a process, or a technical fix to a real problem. In exchange for publicly disclosing how the invention works, the inventor gets twenty years where nobody else can make, use, or sell it without their permission. It is a trade, the world learns how the thing works, and the inventor gets a head start on profiting from it.
Copyright protects creative expression, books, songs, films, arts, and at the moment it is fixed in some tangible form. Under the Berne Convention, to which Nigeria is a party, Copyright protection depends on no registration, no application, no waiting period, and the instant you write the poem or record the track, you own the right to say who can copy, distribute, or adapt it.
Trademarks are about identity and trust. A logo, a name, a slogan, anything that tells a customer “This came from us and not some knockoff”, falls under trademark protection. The underlying goal isn’t to reward creativity the way copyright does; it’s to stop consumers from being misled about where a product actually comes from. It is trademarks specifically that the digital economy has put under the most pressure, and that’s where the rest of this piece is focused.
Six Areas Where the Old Rules Are Struggling to Keep Up
- Cybersquatting and Domain-Name Disputes
Long before social media or the Metaverse, there was cybersquatting: buying up a domain name that matches or closely mimics a known trademark, usually to resell it back to the brand at a markup, or to quietly divert traffic meant for the real Company. Domain registration runs on a first-come, first-served basis, which means a Cybersquatter only needs to be faster than the brand’s legal team, not smarter.
Internet Corporation for Assigned Names and Numbers (ICANN) and World Intellectual Property Organization (WIPO) jointly run the Uniform Domain-Name Dispute-Resolution Policy (UDRP), which gives trademark owners a way to reclaim a hijacked domain without filing a lawsuit. To win, the brand has to show three things: the domain is identical or confusingly close to their mark, the person who registered it has no legitimate claim to it, and it was registered and used in bad faith. It is a solid tool for generic domains like .com or .net, but it loses teeth against countries, specific domains, and it has no criminal enforcement power of its own, so national courts still end up doing the heavy lifting when the UDRP route stalls.
- Online Marketplaces and E-commerce Challenges
Amazon, Flipkart, eBay – these platforms reshaped shopping, but they also created a scale problem no legal system anticipated. When a marketplace hosts thousands of independent sellers, some of them are going to sell counterfeits, and monitoring every single listing by hand simply isn’t realistic.
Courts are increasingly unwilling to let platforms shrug this off as “not our problem”. In the 2025 case, Amazon Seller Services Pvt. Ltd. v. Beverly Hills Polo Club India, the Delhi High Court ordered Amazon to stop counterfeit goods bearing the plaintiff’s mark from being sold on its platform, a clear signal that once a platform knows infringement is happening, standing by is no longer good enough. That ruling matters beyond the specific facts of the case, because it pushes back against the old idea that a marketplace is just a neutral pipe connecting buyers and sellers, with no responsibility for what flows through it.
Still, the underlying problems persist. Sellers are scattered across borders, so even when a brand wins a case in one country, the same seller can often just reopen under a new account somewhere else. Jurisdiction gets murky fast when the seller, the platform’s servers, and the buyer are all in different countries, each with its own trademark rules, and takedown requests only work as fast and as fairly as each platform’s internal policy allows. Brands with large legal teams and dedicated account managers tend to get infringing listings removed quickly, while smaller brands without that leverage can wait weeks for the same result, if it even happens at all.
- Social Media Turned Every User into a Potential Infringer
On Instagram, YouTube, and Facebook, ordinary people mention, tag, and feature brands constantly, most of the time with zero bad intent, which is a free marketing for brands when it works in their favor, but it also opens the door to misleading endorsements, unauthorized commercial use, and dilution of a mark’s distinctiveness. An influencer might unknowingly promote counterfeit stock or use a brand name in a way that implies a partnership that doesn’t exist.
Platforms rely on a mix of automated filters and user reporting to catch this which both are blunt instruments because legitimate content gets flagged and pulled far too often, while genuinely infringing posts slip through. That tension, “protecting trademarks without steamrolling free expression”, does not have a clean legal answer yet.
- Bidding on a Competitor’s Name
Search engines let advertisers bid on keywords, and there is nothing stopping a company from bidding on a rival’s trademark so their ad shows up when someone searches for the competitor by name. This raises what is known as “initial interest confusion”, the idea that a consumer might click the wrong link, at least for a moment, before realizing it is not who they were looking for.
American courts have spent years working out where legitimate competitive advertising ends and actionable infringement begins. Indian courts haven’t developed anything close to that level of clarity, which leaves brand owners in India genuinely unsure what remedies, if any, they have when a competitor buys ads against their name.
- When the Infringer is just an “Algorithm”
AI tools now generate logos, brand names, marketing copy, and product designs on request which are just prompts and sometimes what comes out looks a little too close to an existing trademark, without anybody involved ever intending to copy anything. A small business owner might ask an AI tool for “a minimalist sportswear logo” and get back something that echoes a well-known swoosh too closely, purely because the model was trained on several real-world examples of exactly that kind of mark; nobody sat down and decided to copy anyone’s mark, the resemblance just emerged from the way the tool works.
That raises questions trademark law was never built to answer. Who is actually liable for this? The company that built the AI tool or the person who typed the prompt or the platform hosting the output? Does an AI-generated design even count as “use in commerce” the way the law traditionally defines it, given that no human directly chose the final image? How do you prove bad faith or intent to deceive when no human being consciously chose to imitate the mark in the first place? Traditional trademark law leans heavily on questions of intent and knowledge, and an algorithm does not have either in any legally recognizable sense. These are not hypotheticals anymore; AI is now a routine part of how logos, ad copy, and product concepts get made, and the law has not caught up with it.
- Trademarks do not know what to do with NFTs
The Metaverse and NFTs introduce a problem trademark law has never had to deal with before: a single unauthorized copy of a branded product that can exist simultaneously across multiple virtual platforms. Physical counterfeits are at least tied to one place at a time but a digital replica of a designer bag or sneaker is not bound that way. It can be minted, traded, or displayed anywhere at once, which unsettles long-standing ideas about territorial trademark rights and exhaustion.
Hermès International v. Rothschild is the case most people point to here. Hermès sued digital artist Mason Rothschild over his “MetaBirkins” NFTs, digital images clearly modeled on the real Birkin bag, and a US jury sided with Hermès, finding the NFTs infringed the brand’s trademark rights despite Rothschild’s argument that the project was protected artistic commentary. It is a meaningful precedent, but one case does not settle a field this new. Courts worldwide are only starting to work out how territorial rights, consumer confusion, and free expression should apply to something that exists purely in digital space, and until more of that gets settled, brand owners and virtual marketplaces alike are operating with real uncertainty.
What Might Actually Help
None of these problems have a single fix, but a few directions keep coming up as genuinely useful, both in academic commentary and in how courts have actually started responding.
Courts stretching existing doctrine to fit new facts, rather than waiting years for legislatures to catch up, which, given how quickly technology moves, they rarely do in time anyway. The Delhi High Court’s approach to marketplace liability and the jury’s reasoning in the MetaBirkins case are both examples of judges applying old trademark principles to genuinely new situations instead of throwing up their hands and waiting for Parliament or Congress to act.
Real accountability from platforms and intermediaries, not just polite cooperation, clear legal obligations to act quickly once they’re notified of infringement, backed by actual consequences if they do not. Voluntary “notice and takedown” systems only work as well as the platform wants them to; making certain baseline response times and verification standards legally mandatory would remove a lot of the current inconsistency.
Better detection technology, since manual monitoring simply cannot keep pace with the volume of listings, posts, and virtual goods being created every day. Image-recognition tools that scan marketplace listings for counterfeit logos, or automated systems that flag suspicious domain registrations the moment they happen, are already technically possible. The gap now is mostly about who pays for them and who’s required to use them.
Cross-border cooperation, because a Cybersquatter, a counterfeit seller, or an NFT minter rarely operates inside the borders of just one country’s legal system. Bodies like WIPO already provide a framework for this through the UDRP, but trademark enforcement still depends far too much on where a case happens to be filed rather than on any consistent international standard.
Where This Leaves Brand Owners
Step back, and all six of these problems are really variations on the same theme; digital technology scaled up both the opportunities and the risks of owning a trademark, and the legal system hasn’t fully absorbed that yet. A Cybersquatter, a counterfeit seller on Amazon, an influencer with a careless caption, a competitor bidding on your brand name, an AI tool generating something a little too familiar, an NFT modeled on your product, these aren’t separate crises; they are symptoms of the same underlying mismatch between how fast digital markets move and how slowly legal frameworks adapt.
Fixing that mismatch is going to take more than well-written statutes. It needs judges willing to stretch old doctrines to fit new situations, platforms that treat enforcement as a real obligation rather than a PR exercise, monitoring technology that can actually operate at internet scale, and governments willing to coordinate across borders on disputes that, by their nature, were never going to stay confined to one jurisdiction.
None of this is likely to be resolved quickly, and it probably shouldn’t be rushed, bad law written in a panic tends to cause its own problems down the line, but the direction of travel is clear enough, the brands that will come out ahead are the ones that treat digital enforcement as a normal part of protecting their mark, not an afterthought bolted onto a strategy built for physical shelves and storefronts. The law will eventually catch up. Until it does, the gap is where all six of these problems keep living.
REFERENCE(S):
Aitken, B. (2004). Keyword-linked advertising, trademark infringement, and Google’s contributory liability. Duke Law & Technology Review, 3(1), 1–15.
Amazon Seller Services Pvt. Ltd. v. Beverly Hills Polo Club India, Civil Suit (Comm), Delhi High Court (2025).
Copyright Act 2022 (Nigeria).
Dino, B. (2003). Passive warehousing under ICANN’s Uniform Dispute Resolution Policy: A utilitarian perspective. CommLaw Conspectus, 11(1), 127–142.
Hermès International v. Rothschild, No. 22-cv-384 (S.D.N.Y. 2023), appeal docketed, No. 23- 1044 (2d Cir. 2024).
Murray, M. D. (2023). Trademarks, NFTs, and the law of the metaverse. Arizona Law Journal of Emerging Technologies, 6, 1–45.
Patents and Designs Act, Cap. P2, Laws of the Federation of Nigeria 2004. Trademarks Act, Cap. T13, Laws of the Federation of Nigeria 2004.
World Intellectual Property Organization. (n.d.). Uniform Domain-Name Dispute-Resolution Policy (UDRP). WIPO/ICANN.
