ISRAEL ADEBIYI. ESQ.*
You know that popular phrase we throw and use here and there in Nigeria? Are you aware, that the phrase is no longer available for commercial use anymore, like it was before?
The widespread use of this phrase, most especially as events’ theme during the ember months, has birthed a trademark dispute. News reports about a few years back, state that Nigerian singer Dare Art Alade and his wife Deola Art Alade, through their entertainment company Livespot 360, registered the phrase, Detty December under entertainment related classifications. Although, many Nigerians find this unbelievable, but sorry and not sorry to say, Nigerian trademark law aligns with their position (Dare & Deola Art ALade).
Trademark protection normally excludes everyday expressions that form part of general vocabulary. Something shifts when a developmental change occurs in the interpretation of a phrase, this, in legal parlance, is described as secondary meaning. This occurs when members of the public begin to associate an expression with a specific source, event, product, or service rendered. Once this connection is established, the phrase becomes capable of being trademarked.
It is worthy of note, that the Nigerian Trademarks Act Cap T13 Laws of the Federation of Nigeria 2004, and the Trademarks Regulations 1967, operate on a first to file principle. The implication of this? A person who registers an expression such as Detty December Festival within a relevant trademark class can acquire enforceable commercial rights even if that person did not create the phrase. WHAT SHOULD YOU UNDERSTAND? The Origin, source, or whatever be it so called, so far it is the point of emanation, does not secure or guarantee priority, what does that is REGISTRATION.
Registration does not grant absolute control over public conversations. Citizens remain free to use the expression in everyday discussion. The owner of a registered mark may only attempt to limit commercial use within the class or classes of registration. Commercial use may include event naming, promotions, ticketing e.t.c. The important question is whether such use can mislead the public into assuming that the activity is connected with or endorsed by the trademark owner.
RELEVANT CLASSES REPORTED FOR THIS EXPRESSION (PHRASE) INCLUDE:
1. Class Forty One: Entertainment services, live shows, concerts, cultural activity planning, and related artistic production
2. Class Thirty Five: Advertising services, promotional services, and merchandising services
On the issue of passing off; Passing off protects goodwill associated with a name, mark, or expression even when that expression is not registered. If a person uses an expression in a manner that misleads the public into believing there is a relationship with the rightful owner, an action in passing off may arise. However, the claimant must show goodwill, misrepresentation, and damage. Registration offers stronger protection, but passing off remains available where actual goodwill exists and the use can mislead.
This leads us to highlighting the various contexts which this phrase may be used.
1. Conversational use of the expression Detty December
2. Private noncommercial references
3. Editorial commentary or academic discussion
4. Artistic work where the public would not reasonably assume sponsorship or affiliation
What context is this phrase not permitted to be used? We have highlighted a few ones below.
1. Commercial events titled Detty December
2. Production and sale of shirts, hats, or similar goods bearing the expression Detty December
3. Promotional campaigns implying endorsement by Livespot360
4. Sale of audio, video, or digital content under the name Detty December
A recent public reaction to this registration surfaced this year, when Livespot 360 promoted its Detty December Fest event. The trending discussion quickly expanded to a social media conversation on fairness, access and the nature of trademark ownership. Quite a number of Nigerians are of the belief that the expression is a cultural term and should remain in the public domain while a few others argue that nothing stops any party from registering a phrase with commercial value if the law so permits.
The lesson herein is clear and direct. If a phrase or slogan has commercial potential, its protection should be a priority. The trademark legislations rewards the first filer, not the most creative origin and not the most popular user. The strongest legal position belongs to the party that secured registration.
Register and resolve questions later.
ISRAEL ADEBIYI. ESQ.
Israel Adebiyi is a young Nigerian lawyer, creative, and entrepreneur with a growing footprint in talent management, brand strategy, and wellness. He is the brain behind TRET Inc, a consultancy focused on talent, ideas, and branding, where he works as a talent manager, business consultant, and creative strategist. Beyond law, Israel is also a certified masseur and wellness therapist, training as a Disk Jockey, and committed to personal growth through study, fitness, and spiritual discipline. He blends law, wellness, and creativity, balancing work, worship, and innovation in his daily life
