Regulatory Regimes And The Ease Of Doing Business In Nigeria

Department of the Federal Ministry of Industry, Trade & Investment ("trademark registry"). While the CAC registers business/company names, the trademark registry registers trademarks and patents such as names, logos, slogans, domain names, shapes and colours etc. Interestingly, sections 30(1)(a)&(d), 579(1)(d)&(e) and 593(a) of the CAMA prohibit the registration of any name that is similar to the name of an existing business, company or any entity that is duly registered under the CAMA; or of any existing trade mark or sign duly registered in Nigeria. In practice, implementing this law has become a very arduous task. Often, business owners/entities with names that are duly registered at the CAC, subsequently discover at the trademark registry that trademarks similar to their existing business names have been registered by other persons; thereby making it impossible for them to register their own trademarks.

To end the confusion that these overlapping regimes administered by the CAC and trademark registry create, and consequently curb the pain and frustration experienced by investors and business entities, these two registering authorities must streamline their processes. (To be continued next week)

TRANSFER OF FOREIGN CAPITAL

In the process of doing business in Nigeria, foreign investors who incorporate Nigerian companies, or make equity investments into Nigerian companies, or advance loans to local associates/subsidiaries, have had to transfer investment capital into the country.

Foreign Capital, under the provisions of section 31 of the Nigerian Investment Promotion Commission (“NIPC”) Act, (Cap. 117 LFN 2004);

“means convertible currency, plant, machinery, equipment, spare parts, raw materials and other business assets, other than goodwill, that are brought into Nigeria with no initial disbursement of Nigerian foreign exchange and are intended for the production of goods and services related to an enterprise to which this Act applies.”

However, it is worrisome to see Solicitors often facing difficulties from administrative rules being implemented by relevant agencies of government in connection with the importation of foreign capital into Nigeria.

Where the capital transferred is a foreign technology i.e. technical expertise, plant, machinery, engineering supply, training facilities, trade mark & patent rights etc., the commercial contract or agreement in respect of such a foreign technology is required under section 5(2) of the National Office for Technology Acquisition and Promotion (“NOTAP”) Act, (Cap. N62, LFN 2004) to be registered with NOTAP – the regulatory agency – not later than sixty days from the execution or conclusion of the contract.

One of the NOTAP regulations, which discourages inflow of foreign technology, states that all matters relating to foreign technologies transferred into the country shall be governed by either the Nigerian law or the law of any other country that is neutral to both the transferor (the foreign party) and the transferee (the Nigerian party). In practice, where the transfer relates to a federal government project, NOTAP always insists that the governing law shall be Nigeria’s but where it involves two parties none of which