By Chukwuma Onyewonsa
I want to ask every entrepreneur this: If you build the best, fastest, most reliable business, the fastest delivery, the cleanest laundry, the coldest drinks, should you be legally silenced from telling customers the truth? That is not a rhetorical question. It lies at the centre of the “Fastest Cakes” trademark saga, and it exposes a legal and regulatory blindspot that threatens every small, speed-dependent business in Nigeria.
The recent attempt to hoard a phrase as ordinary as “Fastest Cakes” is not a triumph of branding. It is a linguistic enclosure: an attempt to make the dictionary private property. In practical terms, it is a weapon — a legal cudgel that can be used to intimidate, silence and raise cost of competing for small businesses that want to tell customers what they do best.
This shouldn’t be a linguistic moat
Trademark law exists to prevent consumer confusion: to make sure shoppers know who made the product they are buying. It was never designed to convert everyday description into exclusive legal property. The law itself draws that line clearly.
Consider the Trade Marks Act’s requirements for registrability. It states what a registrable mark must be:
“In order for a trade mark (other than a certification trade mark) to be registrable in Part A of the register it must contain or consist of at least one of the following essential particulars:
(a) the name of a company, individual, or firm, represented in a special or particular manner;
(b) the signature of the applicant for registration or some predecessor in his business;
(c) an invented word or invented words;
(d) a word or words having no direct reference to the character or quality of the goods, and not being according to its ordinary signification a geographical name or a surname;
(e) any other distinctive mark: Provided that a name, signature or word or words other than such as fall within paragraphs (a) to (d) of this section, shall not be registrable under paragraph (e) of this section, except upon evidence of its distinctiveness.” — Trade Marks Act, Section 9 (1–2).
Put simply: the law expects a trademark to be distinctive — a sign that identifies origin, not a plain description of the goods or service. Where the mark is merely descriptive, the Act requires evidence that it has acquired distinctiveness before it can be monopolised. That legal test matters because, without it, a firm could patent words the public needs to use — “fastest”, “freshest”, “best” — and use the courts to exclude rivals from truthful descriptions of their services.
The Act goes further to protect honest advertising. It recognises that registration should not interfere with truthful commercial speech:
“The registration of a trade mark shall not interfere with:
(a) any bona fide use by a person of his own name or the name of his place of business, or …
(b) the use by any person of any bona fide description of the character or quality of his goods …” Trade Marks Act, Section 8. WIPO
That is the law’s commonsense backstop: you cannot be stopped from using honest descriptions of the quality or character of what you sell.
Constitutional gravity: the right to tell the truth about your service
This is not only a matter of statutory technicality. At the highest level, the Constitution protects the freedom to impart information — a protection that extends to truthful commercial speech. Section 39 of the 1999 Constitution provides:
“Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.” — Section 39(1), Constitution of the Federal Republic of Nigeria, 1999. Nigeria Rights
That protection is foundational. When a baker, rider, or logistics firm tells customers they are “fastest,” they are exercising the freedom to impart information protected by the Constitution. Turning ordinary descriptive language into an exclusive monopoly chills that freedom and constrains the marketplace of ideas and services.
Yes, constitutional rights are not absolute; the law allows lawful restrictions. But locking down the common words of trade, the language businesses need to communicate competence — cannot reasonably be framed as a justifiable restriction in a democratic society. It is a private advantage dressed up as legal formality.
What matters for SMEs & economy
It would be easy to reduce the problem to a single bad trademark application. The truth is more structural: when registries allow descriptive marks to slip through, they hand the first filer a potential instrument of market exclusion.
For thousands of Nigerian SMEs that compete on speed, food delivery outfits, courier services, event caterers, laundry services, beverage distributors — the ability to say what they do is not puffery; it is the core of their marketing. When the registry gives one firm exclusive rights over the term “fastest” paired with a product, it creates a regulatory gatekeeper that can be used selectively to block rivals or extract settlements.
Imagine the legal costs for a small baker served with a cease-and-desist for using “fastest” in an online ad while they invest in a motorbike and a training regime to improve delivery times. The cost of defending a simple truth becomes prohibitive. That is not competition but linguistic gatekeeping — a non-tariff barrier to entry.
Why regulators must act now
This is not merely academic. The Registrar of Trade Marks and Corporate Affairs Commission are custodians of a legal regime meant to balance private rights with public interest. The Trade Marks Act itself frames registrability to prevent exactly this outcome. Regulators must therefore:
Apply Section 9 strictly: refuse registrations that are plainly descriptive unless the applicant adduces clear evidence of acquired distinctiveness. The law demands nothing less.
Uphold Section 8 protections: explicitly affirm that bona fide descriptions remain available to the trade, and publicise this guidance so SMEs are not intimidated by vague threats. WIPO
Issue a clarifying advisory to the business community: regulatory silence fuels abuse. A short, public statement explaining the boundaries of registrability will deter opportunistic filings and reassure honest traders.
Streamline opposition pathways: make it simpler and cheaper for groups of SMEs to challenge descriptive registrations, because the current opposition process is costly and slow.
If regula tors fail to act, courts will eventually do the work — but only after costly litigation. It is far better for the public interest that the registry use the clear statutory standards it already has to refuse monopolies over necessary commercial language.
The bottom line
The fastest way to build a robust, competitive economy is to ensure every business is free to describe its service. Let the best service win. But no business should be empowered to silence rivals simply by claiming exclusive ownership of ordinary words.
Cancel this generic trademark. Reaffirm that description belongs to the market, not the courtroom. Let fair competition flourish, and let entrepreneurs speak plainly to customers.
