A Brand Is Not a Logo

A woman builds a skincare line in Lagos over nine years. She names it, she designs the jar, she finds a factory in Ogun State willing to make it to her formulation, and she sells it into pharmacies until the name means something to a hundred thousand women. A buyer appears. He is serious, his lawyers are serious, and his offer is serious.

Then due diligence begins, and it asks her one question, which she has never been asked before and cannot answer.

Show me what you own.

She produces a certificate of incorporation, which proves that a company exists. She produces a bank statement, which proves that the company earns. She cannot produce the trademark, because it was never registered. She cannot produce the copyright in the jar’s artwork, because the designer she paid in 2019 never assigned it and cannot now be found. She cannot produce the formulation, because the factory developed it and regards it as theirs. She cannot produce the NAFDAC registration in the company’s name, because the factory holds it. She cannot produce the Instagram account, because it was opened by a former staff member on a personal number.

What she has is a business. What she thought she had was a brand. The offer is withdrawn, or reduced, or restructured into an employment contract dressed as an acquisition, which is the polite form the same disappointment takes.

This essay is about the gap between those two things, and it is the question the whole of Brand Capital exists to work through.

Open the Trade Marks Act and look for the word brand. It is not there. The Act speaks of marks — devices, names, signatures, words, letters and numerals used or proposed to be used in relation to goods for the purpose of indicating a connection in the course of trade. Open the Companies and Allied Matters Act. It speaks of company names and business names, which are registration facts, not property. Open the Copyright Act. It speaks of works — artistic, literary, musical — and vests rights in authors. Open the Patents and Designs Act. It speaks of industrial designs, which are the appearance of an article. Open the Federal Competition and Consumer Protection Act. It speaks of suppliers and of the obligations owed to a consumer by whoever puts goods into the market.

Five statutes, five vocabularies, and not one of them has heard of a brand.

This is not a pedantic observation. It is the single most consequential fact in Nigerian commercial identity, and almost every ownership failure in the country traces back to it. The founder thinks in terms of a brand because that is how the market speaks, how the marketing agency invoices, and how the business is described at every dinner table where it is discussed. But there is no registry for brands. There is no certificate of brand. There is no assignment of a brand. When the day comes to prove ownership, sell the business, secure a loan against it, or pass it to a child, the law will not accept the category. It will ask instead for the specific rights that lie beneath the category, one at a time, each with its own paperwork.

A brand, in law, is not a thing. It is a word we use for a collection of things that happen to point in the same direction.

Every brand has a surface, which is what the public perceives, and a structure, which is what the law recognises. The surface is easy to describe because it is designed to be perceived. It is the name, the logo, the colour, the shape of the container, the slogan, the typeface, the tone of the advertising, and the general public sense that this thing is good and that thing is not.

The structure beneath is harder, because it does not map onto the surface neatly. Some of the surface has a great deal beneath it. Some has very little. And some has nothing at all.

The name, if registered, sits on a trademark, which is a monopoly in a specified class of goods or services, renewable indefinitely, enforceable by injunction, and capable of being assigned or licensed like any other property. If it is not registered, the name sits on goodwill alone, which is real but far weaker and far more expensive to prove. The logo sits on two rights at once: a trademark, if it was registered as a device, and a copyright in the artistic work, which belongs at first instance to whoever drew it. The packaging shape may sit on a registered industrial design, if it was registered before it was published, which it almost never is. The formulation sits on nothing registrable at all in most cases; it sits on confidentiality, which is a matter of contract and conduct rather than filing. The reputation sits on goodwill, which is not registrable anywhere.

And the colour, which the founder may care about most, generally sits on nothing whatsoever.

The reason ownership fails is that the founder reasons from the surface. She built a coherent thing, so she assumes she owns a coherent thing. But coherence at the surface is a design achievement. Coherence in the structure is a legal achievement, and it does not happen by itself.

Recognition is not ownership. It is only evidence that something worth owning exists.

Take a mature Nigerian consumer brand and ask, of each component, who holds the right. The answers are rarely the same person.

The trademark, if registered at all, is frequently registered in the founder’s personal name, because the agent who filed it asked whose name to put and the founder gave her own. The company then trades on a mark it does not own, usually without a licence, sometimes for a decade. The copyright in the logo belongs to the designer, because Nigerian copyright vests in the author and commissioning does not transfer it by itself; payment buys the work, not the right, unless the contract says so and is signed. The domain sits in the account of the developer who registered it, renewing quietly on his card. The social accounts sit with whoever opened them, and are recoverable only through the platform’s own procedures, which are indifferent to Nigerian company law. The product registration with NAFDAC may sit with the contract manufacturer, which means the regulator regards the factory, not the founder, as the party responsible for the product. The formulation sits in the factory’s laboratory. The customer list sits in a distributor’s phone.

Seven components, six owners, and no agreement among any of them. The brand functions, and functions well, because the founder is present and everyone is broadly cooperative. It is held together not by law but by relationships and momentum. Remove the founder — through death, through illness, through a dispute with the factory, through a sale — and the components separate, because nothing was ever holding them together except her.

This is the condition of the great majority of successful Nigerian brands. It is not a failure of intelligence. It is a failure of category: the founder was never told that the thing she was building was in fact seven things.

Of all the components, one cannot be filed anywhere, and it is the one that carries most of the value.

Goodwill is the attractive force of a business — the tendency of customers to return, to recommend, to pay more, to forgive an error. The law recognises it: passing off exists precisely to protect it, and a claimant who can prove reputation, misrepresentation and damage may restrain a competitor without ever having registered anything. Goodwill is genuine property. It appears on balance sheets. It is bought and sold.

But it has three characteristics that founders consistently misjudge.

It is located in other people. Goodwill exists in the minds of customers, and no filing can create it or preserve it. A registered trademark with no market behind it is a legal right protecting nothing. This is why registration is necessary but never sufficient, and why the question of whether to register can never be answered by asking whether the business is already known.

It attaches to a business, not to a name in the abstract. Goodwill cannot ordinarily be sold on its own, detached from the trade that generates it, in the way a trademark can. This is the reason a brand and the company that uses it cannot be separated casually, and the reason that separating them properly is an exercise requiring structure rather than a decision requiring courage.

And it is frequently attached to a person rather than to an institution. Where the public’s confidence rests on the founder — her face, her judgement, her presence at the shop, her voice in the advertising — the goodwill is personal. It does not automatically pass to a buyer, and it does not automatically pass to a child. It walks out when she does.

The valuation the buyer offered in the opening scene was almost entirely a valuation of goodwill. What he then asked for was the legal apparatus that would allow him to take delivery of it. That apparatus is the trademark, the copyright assignment, the manufacturing agreement, the regulatory registration and the restrictive covenants. He was not being difficult. He was doing the only thing a buyer can do, which is to check whether the value can be moved.

Beneath the paperwork, the law asks three questions of any commercial identity, and they run in sequence.

Distinctiveness is a decision made at birth. Use is a discipline of trading. Control is a discipline of contracting. A brand that survives has passed all three, and most brands are never tested until the moment they fail.

Brands do not usually die of competition. They die of one of four structural causes, and each corresponds to a body of work this series will take up in turn.

Naming, borrowing, licensing, succession. Four ways for an asset built over decades to become unusable in a season.

Brand Capital sits on The Financial Citizen because a brand is a wealth structure, not a marketing achievement. Its subject is the same as the trust work published here: how value that a person created becomes value that an institution can hold, protect and pass on. The trust essays ask that question of money and land. These ask it of a name.

Every substantial essay in this series will put the same six questions to whatever commercial object is in front of it.

Those six questions are not a checklist to be recited. They are a diagnostic. Applied to a jar of cream, they produce a manufacturing agreement and a regulatory strategy. Applied to a family business, they produce a holding structure and a succession instrument. Applied to a founder’s own name used as a mark, they produce the hardest question in the field, which is whether a person can build something that outlives them without ceasing to be theirs.

The woman in Lagos did not fail. She built the only part that cannot be bought, which is the part that lives in other people’s minds. What she did not build was the apparatus that would let her sell it, borrow against it, license it or leave it to her daughter. That apparatus is not complicated. It is merely invisible, and nobody told her it was there to be built.

A brand is not what the public remembers. It is what survives the person they remember it by.

This publication is educational and analytical. It describes how legal and commercial structures work; it does not advise on any particular matter, and nothing here should be relied upon as advice on a reader’s own affairs. The author holds commercial interests in the brand-building and private-label sector examined by this series.