Authored By: Aanuoluwapo Olorunnipa
University of Ilorin, Kwara State, Nigeria
ABSTRACT
Fashion, as one of the channels through which Nigerians express themselves creatively, has grown tremendously over time. Fashion both as an idea and industry contributes immensely to our economy and the empowerment of many Nigerians. The growth in this area has however been faced with many hindrances due to massive design theft and unauthorized replication of these designs which defeats the purpose of the time, effort and money put into creating unique designs by original designers. This paper seeks to analyze if our laws and enforcement mechanisms are enough to protect fashion designers from design theft. In doing so, this paper will follow doctrinal research methodology to highlight the protection provided by our major intellectual property regimes which includes copyright, trademarks and industrial designs laws as well as existing administrative and judicial means of enforcement. Ultimately, this research aims to contribute to the limited body of literature on intellectual property and fashion in Nigeria while offering valuable suggestions for strengthening the legal safeguards against design theft.
Keywords: Design Protection, Fashion design, Fashion Law, Intellectual Property, Creativity, Innovation.
1. INTRODUCTION
The greatest resource and bedrock of every civilization is its creativity, innovation and invention and all these boost the economy of a nation.[1] Every country has laws put in place for the protection of the creativity of the nation, with Nigeria inclusive. Without the protection of ideas, businesses and individuals would not fully benefit from their inventions and would focus less on research and development.[2] Intellectual property refers to creation of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.[3] Intellectual property is a kind of property but unlike physical property such as land, intellectual property is incapable of being physically owned or possessed and can therefore be simultaneously enjoyed by different users without being lost to the creator or owner. The fashion industry contributes immensely to the global gross domestic product. Designers carefully combine elements like lines, shapes, colours, textures, and patterns to bring their creative visions to life. The process is both detailed and labour-intensive. From sketching the form, selecting or even creating fabric, to drafting patterns and assembling components. It goes without saying that brands invest considerable effort into crafting designs to give it an original character.[4] As such, discovering that their work has been blatantly copied can feel deeply disrespectful and undermining. The tremendous growth in the Nigeria fashion industry prompts a recognition of fashion law and the need for the law to provide a useful guide on legal issues faced by designers in the fashion world.
2. BACKGROUND: FASHION DESIGN AS AN INTELLECTUAL PROPERTY
Property is a much wider concept,[5] that deals with both tangible and intangible things, movable and immovable things. As a result, it is defined by an author as “anything to which an individual or organization holds legal title to”[6]
Intellectual property is a category of property that includes intangible creations of the human intellect.[7] Unlike traditional property, intellectual property is “indivisible”, since an unlimited number of people can in theory consume an intellectual good without its being depleted.[8]
The fashion industry is one of the most dynamic industries in recent times.[9] Fashion design is the art of creating unique clothing and accessories, blending creativity and aesthetics with functionality. It involves the application of design, aesthetics, and natural beauty to garments and their embellishments.[10]
Fashion law is a legal field encompassing issues that arise throughout the life of an article of clothing or a fashion accessory.[11] Fundamental issues in fashion law include intellectual property,[12] business and finance with subcategories. Intellectual property protection is at the heart of fashion law.[13] This field of law has also found its way into the Nigerian law practice. According to Annie Oti,[14] fashion law is beyond intellectual property, as it involves also business law, employment law, finance law, tax laws and so on. Nevertheless, when it comes to protecting designs and works of the fashion industry, intellectual property laws are made recourse to.
3. LEGAL ANALYSIS
The enforcement of intellectual property rights in Nigeria includes various measures by which intellectual property rights are protected under the law, and these makes up the legal framework for the protection of IP.
3.1 Legal Framework for Fashion Design Protection In Nigeria
- Copyright: Copyright in Nigeria is governed by the Copyright Act, 2022. Copyright is one of the major forms of intellectual property, protecting many forms of creative expression. Works eligible for copyright under the Act are: literary works, musical works, artistic works, audio-visual works, sound recordings and broadcasts.[15] Copyright applies automatically to these eligible works once the requirements of originality and fixation have been met.[16] Fashion designs fall under artistic works. S.108 of the Act,[17] defines artistic works as including paintings, drawings, prints, works of artistic craftsmanship, etc.
- Patents: The Patent and Designs Act Cap. P2 LFN, 2004 regulates the grant of patent protection in Nigeria. Patents are legal rights that confer on inventors of new and useful products and processes, the right to exclude others from the commercial exploitation of the invention.[18] Patent protection typically does not apply to fashion designs because although they are useful articles, performing the function of covering and adorning the body, their function is not of a technical nature. In Nigeria, however, patent protection for fashion remains rare but as the industry evolves, and with better legal and enforcement mechanisms in place, people would be encouraged to invest and innovate in new creations.
- Industrial Designs: Arguments have been made in favour of the fact that where fashion designers are unable to have a copyright protection, they opt for protection of their designs under the Patents and Designs Act. The P&D act provides protection even with the intention to reproduce more of the same design registered. Industrial design protection is regulated by the Patent and Design Act Cap. P2 LFN, 2004. Industrial designs refer to the aesthetic or ornamental outlook of a product. This form of intellectual property protects creative efforts which go into making a product look visually appealing.[19] Industrial design protection appears to be the most suitable IP protection available for fashion designs because all components of the fashion design can enjoy protection under this framework.
- Trademark: A trademark is a sort of intellectual property that consists of a distinguishing sign, design, or expression that may be used to identify goods and services as coming from a specific source and set them apart from those of other sources.[20] A trademark identifies the source of a good, provides legal protection for a good and also helps to guard against counterfeiting and fraud. Trademark is the most common and easiest way designers seek protection for their brands.
3.2.Enforcement Challenges
It is one thing to have laws protecting the Intellectual Property rights of creators, and quite another for those laws to be effectively implemented. Nigeria has a legal framework for intellectual property protection. Although this framework does not accommodate the needs of the fashion industry adequately, enforcement of the limited protection has been stunted, enabling design theft and infringement to thrive.
The legal framework for intellectual property protection in Nigeria barely accommodates the needs of the fashion industry. The Copyright Act almost outrightly excludes fashion designs from protection with its provision under Section 2(6).[21] This is because most fashion designs are made with the intention of replication, making them readily available to the public for sale. The implication of this exclusion is that designers have lost the opportunity of automatic protection granted to copyrighted works. The Patents and Designs Act,[22] which governs industrial designs, has not been meaningfully updated since 1970 and fails to reflect the realities of today’s fashion industry. The Industrial Design system is supposed to be the ideal system for fashion designs, however, the arduous conditions for protection,[23] and the compulsory registration requirement makes it inadequate to meet the needs of the fashion industry, particularly its dynamic and fast-paced nature.
Also, there is no special regulatory body or formal enforcement agency overseeing the enforcement of IP rights in the fashion industry. The fashion industry in Nigeria is largely informal. Many designers are not aware of the IP rights they have over their fashion designs. Intellectual property is still a new and obscure concept to many, so they are not aware of the registration requirements for trademarks and industrial designs.
Resources should therefore be put into addressing practical challenges in the country which hinder enforcement of design infringement. Doing these will strengthen the institutional capacity for the enforcement of IP rights in Nigeria’s fashion industry.
4. CASE LAW ANALYSIS
4.1.Ajibowo & Co Ltd v Western Textile Mills Ltd [24]
In this case, the plaintiffs, a limited liability company, are textile manufacturers at Ilupeju Industrial Estate in the Ilupeju district of Lagos.[25] In August 1971, the plaintiffs created a new, distinctive textile check pattern design named K13/14. To get the fabric manufactured, they approached Western Textile Mills Ltd (the Respondent), a textile manufacturing company in Lagos. The plaintiffs took delivery of part of the order but left a balance of over 2,200 yards uncleared. After warning Ajibowo, Western Textile Mills sold the leftover fabric to other customers in the open market to recover their costs.
In December 1971, about four months after making the commercial order with the manufacturer, the plaintiffs officially registered the textile design under the Patents and Designs Act. Later, when the defendants attempted to register a similar design, they discovered Ajibowo’s prior registration. Annoyed by this, Western Textile Mills sued Ajibowo at the High Court, asking the court to declare Ajibowo’s design registration null and void. They argued that because the design had been shown to them and the resulting fabrics were sold in the market before the official registration date, the design was no longer “new” and had suffered from prior publication (public disclosure). Under Nigerian intellectual property law, an industrial design must be new to be validly registered. If it is made available to the public anywhere, via description or use prior to the application date, it loses its novelty.
The Supreme Court ruled in favour of F.O. Ajibowo & Co. Ltd. The court held that sharing a design with a manufacturer who has a vested commercial interest in producing it does not amount to making it available to the public. Since this public exposure was an unauthorized consequence of the breakdown of the transaction, and not intentional, it could not be used to defeat the creator’s right to register the design as new.
4.2. Spivap (Nigeria) Ltd v Bola Alaba & Ors [26]
The Plaintiff was the owner of a validly registered industrial design under the Nigerian Patents and Designs Act. Discovering that the Defendants were manufacturing and selling a product that mirrored their design, Spivap instituted an action for design infringement. The Defendants argued that the design lacked novelty at the time of registration because identical or substantially similar designs had already been in use and available to the public prior to the application date.
The Federal High Court ruled in favour of the plaintiff, dismissing the defendants’ objections and upholding the validity of the plaintiff’s design, and stating that mere oral evidence or testimonies are completely insufficient to prove that a design is an infringement or that it lacks novelty. The court then laid down a strict procedural directive for proving design cases in Nigeria; that to determine whether a design is infringing, or lacks novelty due to prior public disclosure, the physical designs themselves must be placed side-by-side before the court.
5. CRITICAL ANALYSIS
A critical analysis of the laws governing fashion designs protection in Nigeria shows that there’s a lacuna in its enforcement and implementation. In view of the legal framework and enforcement challenges established earlier, four significant solutions are recommended.
Firstly, it is recommended that the starting point of a better protection for fashion designs should start from review of the various acts regulating IP protection in Nigeria. Copyright is major to the IP world. It serves as an automatic measure of protection without application or fee. The fact that fashion design is not mentioned in the copyright act as one of the works eligible for protection poses a challenge for adequate protection. The Designs Act of Nigeria should also be reviewed. It has proven to be a friendly law to the fashion industry, with issues only attached to the rigor of application and fee. The fashion industry is a trend industry. It is fast paced in the sense that trends come fast and go fast, so a designer would rather make money than go through formalities of applications.
Furthermore, there should be massive awareness and education of laws available for fashion designs protection. Proper understanding of the laws would go a long way for designers. The Nigerian government should also take the fashion industry seriously by organizing field works and workshops bothering on legal protection.
Also, the Nigerian government should take active steps to ratify and domesticate important international treaties like the Hague Agreement and the Madrid Protocol which simplify the international design and trademark registration processes respectively. Ratification of these treaties would make cross-border protection easier and more-cost-effective for Nigerian designers and boost their global competitiveness.
Finally, a formal regulatory body or enforcement agency should be created, or the mandate of an existing body should be extended, to pay close attention to the promotion and enforcement of IP rights specifically in the fashion industry. The enabling law of the regulatory body can also introduce fines and penalties for offenders. This will go a long way in enforcement of design protection in Nigeria.
6. CONCLUSION
The consideration of the consequences of not protecting fashion designs and the argument of whether or not fashion should be protected serve as the conclusion. While Nigeria’s fashion industry has experienced substantial growth, design theft continues to plague the industry, limiting the reach of its potential. Lack of protection has the consequence of fostering design theft. This research conclusively establishes that the legal and enforcement framework for the protection of fashion designs in Nigeria is inadequate, consequently enabling the spread of design theft and infringement. The existing intellectual property laws in Nigeria are poorly adapted to the peculiarities and fast pace of the fashion sector,
The growth of the Nigerian Fashion Industry prompts the distinct recognition of Fashion law which has consequently led to a need for the law to provide guidance on the myriad legal issues faced by designers in the fashion world. Fashion designs, as intellectual creations, deserve the same level of protection and oversight as other creative works like music, film and fine arts. By modernizing IP laws, ratifying key treaties, and strengthening institutions, Nigeria can foster creativity, protect designers’ rights, boost global competitiveness, and unlock the fashion industry’s full economic potential.
7. REFERENCES
Table of cases
- Ajibowo & Co Ltd v Western Textile Mills Ltd [1976] 7 SC 97
- Spivap (Nigeria) Ltd v Bola Alaba & Ors [1991] FHCLR 181
Table of Statutes
- Copyright Act, 2022
- Patents and Designs Act, Cap P2 LFN 2004
- Trade Marks Act, Cap T13 LFN 2004
Bibliography
- Asein, B.O., Fashion Law in Africa: A Guide for Fashion Entrepreneurs (2025)
- Fibre2Fashion “Fashion Design: History, Innovation, and How to Become a Fashion Designer” (2007) available at https://www.fibre2fashion.com/industryarticle/2860/what-is-fashion-design
- Oluwasemilore, I. A. “Nigerian Intellectual Property Protection for Small and Mediumsized Enterprise (SME) Fashion Designers in the Digital Economy” (2022) 10 South African Intellectual Property Journal, 39
- Oyewunmi, A, Nigerian Law of Intellectual Property (2015)
- World Intellectual Property Organization (WIPO) 2016
[1] Mary Obianuju Nwogu, Copyright law and the menace of piracy in Nigeria, (2015) Journal of law, policy and globalization, Vol 34, 2224-3240
[2] Department of Commerce, United States of America, Intellectual Property Rights (IPR) Basics, https://www.stopfakes.gov/ Accessed 2nd June, 2026
[3] WIPO, What is Intellectual Property, https://www.wipo.int/about-ip/en/ Accessed 2nd June, 2026
[4] Which is one of the requirements to be met for copyright protection under the Copyright Act, 2022, s. 2(2)(a)
[5] Ambransh Bhandari, types of property (nov 23 2019) https://bnblegal.com/article/types-of-property/ accessed 2nd June, 2026
[6] Silvasahu, types of property under law https://www.legalserviceindia.com/legal/article-9944-types-of-property-under-law.html
[7] World intellectual property organization (WIPO) (2016). Understanding industrial property.
[8] Moberly Micheal D. (2014). Safeguarding intangible assets. Butterworth-Heinemann. Pp. 33-35. ISBN 978-0-12-800516-3
[9] Atoyebi O.M. S.A.N, fashion design piracy; the Louboutin case and the legal considerations https://thenigerialawyer.com/fashion-design-piracy-the-louboutin-case-and-the-legal-considerations/ accessed 6th June, 2026
[10] Fibre2Fashion “Fashion Design: History, Innovation, and How to Become a Fashion Designer” (2007) available at https://www.fibre2fashion.com/industry-article/2860/what-is-fashion-design (accessed 6th June, 2026)
[11] Susan Scafidi, introduction: fashion law triumphant designing success in a new legal field in navigating fashion law: leading lawyers on developing client brands in a changing market and monitoring key legal developments (Thomson Reuters 2014)
[12] Ursula Furi-Perry, the little book of fashion law (American bar association 2014)
[13] Meet the man who upholds the laws of fashion at forbes.com
[14] Annie Oti is the founder of African fashion law, a platform which provides business and legal solutions for creatives in the fashion industry in Nigeria and Africa at large
[15] Copyright Act, 2022, s.2(1)
[16] S.4 provides that no formality is required for eligibility
[17] Copyright Act 2022
[18] A. Oyewunmi, Nigerian Law of Intellectual Property (2015) 141
[19] Patents and Designs Act, s.12
[20] A trademark is a sign which can distinguish your goods and services from those of your competitors
[21] An artistic work shall not be eligible for copyright, if at the time the work is made, it is intended by the author to be used as an industrial design, as defined under the pattern designs.
[22] Cap P2 LFN 2004
[23] Under Section 13 of the Patent and Designs Act , a design must be new to be registerable. A design is not considered new if it has been made public anywhere in the world before the application is filed. This creates a significant problem for designers who often advertise their work on social media or at fashion shows before considering registration.
[24] [1976] 7 SC 97
[25] https://www.lawglobalhub.com/f-o-ajibowo-and-co-ltd-vs-western-textiles-mills-ltd-1976-lljr-sc/?hl=en-NG
[26] [1991] FHCLR 181
