The term “Counterfeiting” in the ordinary sense refers to the act of fraudulently manufacturing, altering, or distributing a product that is of lesser value than the genuine product. There are so many legislations in Nigeria in relation to counterfeiting one of which is the Merchandise Marks Act (CAPM10, 2004). Offences as to trademark as stated in Section 3 of the Merchandise Marks Act (CAPM10, 2004) involves false trade description; the manufacture, sale or possession of equipment used to forge trademarks; or the deceptive application and use of trademarks.
The act of counterfeiting and forgery is against Section 3(3)(a) of the Merchandise Marks Act (CAPM10, 2004) which provides for forgery of any trademark as a criminal offence and the breach of this law is provided for Section 3(2).
For a party to successfully sue for counterfeiting, certain elements must be proved. This is provided for in Section 4 of the Merchandise Act which posits that a person shall be deemed to forge a trademark who either:
Without the assent of the proprietor of the trademark, makes that trademark or a mark so nearly resembling that trademark as to be calculated to deceive; or Falsifies any genuine trademark, whether by alteration, addition, effacement, or otherwise.
It is noteworthy to mention that there are two exceptions to the breach of Section 2 and this is provided for in Section 2(a) and Section (2)(b). Section 3(3)(a) and (b) states that every person who is guilty of an offence against this act shall be liable conviction by a State High Court On conviction before a high court to imprisonment for a term of two years, or to a fine, or to both.