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Trademark Regulation Under The Trademarks Act Of Nigeria

By
Emmanuel Ifeanyi Ogbuka
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0

Intellectual Property :- Part A Trademark Registration Under The Trademarks Act Of Nigeria

This article is the first in a 7-part article series and is mainly focused on the provisions of Nigerian law, specifically the Trademarks Act, on the topics of :-

– The Trademark register & Registrar.

– Effects of non-registration.

– Registration in respect of particular goods.

– Rights given by Part A registration.

What exactly is the trademark register and who is the trademark registrar?

The Registrar

– The registrar is an appointed person in charge of the Trademarks registry and shall have an official seal.

– The registrar is answerable to the Federal Minister Of Trade & Investment.

– The functions of the registrar can be reassigned by the minister to any other officer he might deem fit for the purpose.

The Register

– There shall continue to be kept a record called a register of trademarks, in which shall be entered all registered trademarks with the names and addresses of their proprietors, the date on which applications were made for their registration, notifications of assignments & transmissions, the names and addresses of all registered users & such other matters relating to registered trademarks as may be prescribed.

What is the effect of non-registration of a trademark?

– No person shall be entitled to institute any proceeding to prevent or to recover damages for , the infringement of an unregistered

trademark, but no statutory provision shall be taken to affect any right of action against any person for passing off goods as the goods of another person or the remedies in respect thereof.

What is the provision of law regarding registration in respect of particular goods?

– A trademark must be registered in respect of particular goods or classes of goods, and any question arising as to the class within which any goods fall shall be determined by the registrar, whose decision shall be final.

What is the right given by registration of trademarks in Part A?

– The registration of a person in Part A of the register as the proprietor of a trademark other than a certification trademark in respect of any goods shall, if valid, give or be deemed to have given to that person the executive right to the use of that trademark in relation to those goods.

Intellectual Property:- Vested Rights & Part B Trademark Registration Under Nigerian Law

This article will be dealing with the provisions of the Trademark Act concerning the topics of :-

– Rights given by the registration of trademarks in Part B.

– Saving for vested rights.

– Saving for use of name, address or description of goods.

What is the right given by registration in Part B?

– The registration of a person in Part B of the register as proprietor of a trademark in respect of any goods shall, if valid, give or be deemed to have given to that person the right in relation to those goods as if the registration had been in Part A of the register.

What is the provision of the Trademark Act regarding saving for vested rights?

– Nothing in this act shall entitle the proprietor or a registered user of a registered trademark to interfere with or restrain the use by any person of a trademark identical with or nearly resembling it in relation to which that person or predecessor in title of his has continuously used that trademark from a date previous to – 

a). The use of the first mentioned trademark in relation to those goods by the proprietor or predecessor in title of his trademark.

b). The registration of the first mentioned trademark in respect of those goods in the name of the proprietor or a predecessor in title of his, whichever first occurred, or where such use is proved to object to that person being put on the register for that identical or nearly resembling trademark in respect of those goods under the Act.

What is the provision of the Trademark Act concerning saving for use of names, addresses or description of goods?

– The registration of a trademark shall not interfere with :- 

a). Any bonafide use by a person of his name or the name of his place of business, or the name of his place of business, or of the name, or the name of the place of business, of any of his predecessors in business.

b). The use by any person of any bonafide description of the character or quality of his goods, not being a description that would be likely to be taken as importing any such reference as mentioned  under this Trademark Act. 

Intellectual Property :- Registrability & Validity Of Registration Of Trademarks Under Nigerian Law

This article will be focused on trademarks under Nigerian law concerning the topics of distinctiveness as a need for registration in Part A of the Trademark register.

Distinctiveness Needed For Registration In Part A

– In order for a trademark 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, firm, individual 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/words other than such as fall within paragraphs (a) to (d) of this provisions, shall not be registrable, except upon evidence of its distinctiveness.

– For the purpose of this provision, distinctiveness adapted in relation to the goods in respect of which a trademark is registered or proposed to be registered, to distinguish goods with which the proprietor of the trademark is or may be connected in the course of trade from goods in the case of which no such connection subsists, either generally, or where the trademark is registered or proposed to be registered subject to limitations, in relation to use within the extent of the registration.

– In determining whether a trademark is adapted to distinguish as aforesaid, the tribunal may have regard to the extent to which –

a). The trademark is inherently adapted to distinguish as aforesaid.

b). By reason of the use of the trademark or any other circumstances, the trademark is in fact adapted to distinguish as aforesaid.

What is the validity period of a trademark registration made under Part A of the Trademark register?

– Part A registration of a trademark is valid for 7(Seven) years.

This part will be taking a closer look at provisions of the Trademark Act on registration and validity of trademarks, particularly the topics of :-

– The capability of distinguishing needed for registration in Part B.

– The registration of deceptive or scandalous matter.

– Trademarking of Chemical substance names.

Capability of Distinguishing Needed For Registration in Part B

– In order for a trademark to be registrable in Part B of the register, it must be capable, in relation to the goods in respect of which it is registered or proposed to be registered, of distinguishing goods with which the proprietor of the trademark is or may be connected in the course of trade from goods in the case of which such connection subsists, either generally or where the trademark is registered or proposed to be registered subject to limitations, in relation to use within the extent of the registration.

– In determining whether a trademark is capable of distinguishing as aforesaid, the tribunal may have regard to the which – 

a). The trademark is inherently capable of distinguishing as aforesaid.

b). By reason of the use of the trademark or of any other circumstances, the trademark is infact capable of distinguishing as aforesaid.

– A trademark may be registered in Part B notwithstanding any registration in Part A in the name of the same proprietor of the same trademark or any part or parts thereof.

Deceptive or Scandalous Matter Not Registrable

a). Any matter the use of which would, by reason of its being likely to deceive or cause confusion or otherwise, be disentitled to protection in a court of justice or be contrary to law or morality.

b). Any scandalous design.

Names of Chemical Substances

– No word which is the commonly used and accepted name of any single chemical element or single chemical compound as distinguished from a mixture, shall be registered as a trademark.

Identical & Resembling Trademarks

– These are not be registered.

Intellectual Property :- Assignment & Transmission Of Trademarks In Nigeria

This article talks about the assignment and transmission of trademarks as provided for under the Trademarks Act of Nigeria, particularly in the areas of :-

– Assignability of trademarks

– The power of the registrar to require, or dissolve associations of trademarks.

– The power of a registered proprietor’s power to assign trademarks.

What are the provisions of the trademark act on assignability of trademarks?

– This is allowed under the act, notwithstanding any rule of law, and can be done in connection with the goodwill of a business.

– This provision will apply to an unregistered trademark used in relation to any goods as they apply in regard to a registered trademark registered in respect of any goods, if :

a). at the time of the transmission of the unregistered trademark it is used in the same business as a registered trademark;

b). it is assigned or transmitted at the same time and to the same person as that registered trademark;

c). it is so assigned or transmitted in respect of goods, all of which are goods –

(i). In relation to which the registered trademark is used in that business.

(ii). In respect of which the registered trademark is assigned or transmitted.

– No rights will follow an assignment made without goodwill until the assignee within 6 months applies to the registrar for directions as to the advertisement of the assignment.

What is the extent of the power of the registrar to require or dissolve association of trademarks?

– Associated as directed by the registrar where are a trademark that is registered is identical with another trademark registered or the subject of an application to register where owned by the same proprietor.

– This association can be dissolved if the registrar is satisfied that there’s no likelihood of deception or confusion.

– Decisions of the registrar are subject to appeals via courtroom suits.

What is the effect of association of trademarks?

– Associated trademarks are assignable and transmissible only as a whole & not separately, but shall for all other purposes be deemed to have been registered as separate trademarks.

What is the extent of a registered proprietor’s power to assign his trademark?

– This power is guaranteed under the trademarks act and is required to be acknowledged by receipts issued by the proprietor.

Intellectual Property :- Offences As To Trademarks & Trade Descriptions Under Nigerian Law

This article and final part of this intellectual property article series looks at the criminal law aspect of trademarks, specifically  trademark infringements & fraudulent trade descriptions under Nigerian Law, specifically the Merchandise Marks Act of Nigeria.

Our focus will be mainly on the topics of :-

– What false trade descriptions are under the merchandise marks act.

– Offences as to trademarks & trade descriptions.

– Forging trademarks.

– Mark or trade description  applications.

What exactly is a false trade description under the merchandise marks act?

– A trade description which is false or misleading in a material respect as regards the goods to which it is applied, and includes every alteration of a trade description, whether by way of addition, effacement, or otherwise where that alteration makes the description false or misleading in a material respect, and the fact that a trade description is a trademark, or part of a trademark, shall not prevent such trade description being false within the meaning of the merchandise marks act.

What are the offences highlighted by the merchandise marks act as  relating to trademarks & trade descriptions?

– Forging a trademark.

– Falsely applying to goods, any trademark or marks so nearly resembling a trademark as to be calculated to deceive.

– Making, disposing of, or having in possession, any die, block, machine or other instrument for the purpose of forging, or of being used for forging, a trademark.

– Applying any false trade description to goods.

What are the exceptions to the provisions of the merchandise marks act regarding acts or omissions constituting offences?

– An act or omission ordinarily being a violation of the merchandise marks act would not be deemed an offence where:-

a). The accused party acted innocently.

b). The accused had no reason to suspect the genuineness of the trademark, mark or trade description.

c). The accused is simply an employee of the legitimate proprietor and is in possession of materials such as dies, blocks, machines by reason of his employment despite the materials legitimately belonging to the proprietor.

What are the penalties for these offences?

– The violation of the merchandise marks act constituting an offence is punishable with an imprisonment term or 2 years, a fine, or both.

What qualifies as forging a trademark under the merchandise marks act?

This occurs via :

– Making a mark without the assent of the proprietor with the intention to deceive.

– Falsifying any genuine trademark, by alteration, addition, effacement or otherwise.

It should be noted that the defendant/accused has the burden of proving the proprietor’s assent.

What are the provisions of the merchandise marks act regarding the application of marks or descriptions?

This occurs when :

– Applying marks or descriptions to the goods.

– Applying any covering, label, reel,or other thing in or with which the goods are  sold or exposed  or had in possession for any purpose od sale, trade or manufacture.

Intellectual Property :- Trademark Use & Non-Use Under Nigerian Law

This write-up will be looking at trademark use & non-use as well as trademark removal/de-registration as well as defensive registrations and registered users under Nigerian law, specifically the Trademarks Act of Nigeria.

What qualifies as non-use of a trademark which would lead to removal of a trademark from the trademark registry ?

– Removal of a trademark is possible by either :-

a). An order of court.

b). At the option of an applicant.

c). A decision of the registrar of trademarks. 

– The grounds of non-use would include the following :-

a). Lack of any bonafide intention on the part of the applicant to use the trademark in relation to those goods up to the date one month before the application.

b). No bonafide use for 5 years from registration.

– The tribunal may refuse an application under this provision if it can be proved that there’s bonafide use of the subject trademark.

What are the provisions of the trademark act on the defensive registration of well-known invested words?

– Where a trademark consisting of an invented word or invented words has, as respects to any goods in respect of which it is registered and in relation to which it had been used (otherwise called “familiar goods”), become so well known that its use in relation to other goods would be likely to be taken as indicating a connection in the course of trade between those goods and a person entitled to use the trademark in relation to the familiar goods, the trademark may, on the application in the prescribed manner of the proprietor registered in respect of the familiar goods, be registered in his name in respect of those other goods as a defensive trademark, notwithstanding that the proprietor registered in respect of the familiar goods, does not use or propose to use the trademark in relation to those other goods and notwithstanding anything in the act and while so registered, the trademark shall not liable to be taken off the register in respect of these goods under the relevant section of this act.

What is the provision of the Trademark Act on registered users?

– A person other than the proprietor of a trademark may be registered as a registered user thereof in respect of all or any of the goods in respect of which it is registered (otherwise than as a defensive trademark) & either with or without conditions or restrictions.

Intellectual Property :- Assignment & Transmission Of Trademarks In Nigeria

This article talks about the assignment and transmission of trademarks as provided for under the Trademarks Act of Nigeria, particularly in the areas of :-

– Assignability of trademarks

– The power of the registrar to require,or dissolve associations of trademarks.

– The power of a registered proprietor’s power to assign trademarks.

What are the provisions of the trademark act on assignability of trademarks?

– This is allowed under the act, notwithstanding any rule of law, and can be done in connection with the goodwill of a business.

– This provision will apply to an unregistered trademark used in relation to any goods as they apply in regard to a registered trademark registered in respect of any goods, if :

a). at the time of the transmission of the unregistered trademark it is used in the same business as a registered trademark;

b). it is assigned or transmitted at the same time and to the same person as that registered trademark;

c). it is so assigned or transmitted in respect of goods, all of which are goods –

(i). In relation to which the registered trademark is used in that business.

(ii). In respect of which the registered trademark is assigned or transmitted.

– No rights will follow an assignment made without goodwill until the assignee within 6 months applies to the registrar for directions as to the advertisement of the assignment.

What is the extent of the power of the registrar to require or dissolve association of trademarks?

– Associated as directed by the registrar where are a trademark that is registered is identical with another trademark registered or the subject of an application to register where owned by the same proprietor .

– This association can be dissolved if the registrar is satisfied that there’s no likelihood of deception or confusion.

– Decisions of the registrar are subject to appeals via courtroom suits.

What is the effect of association of trademarks?

– Associated trademarks are assignable and transmissible only as a whole & not separately, but shall for all other purposes be deemed to have been registered as separate trademarks.

What is the extent of a registered proprietor’s power to assign his trademark?

– This power is guaranteed under the trademarks act and is required to be acknowledged by receipts issued by the proprietor.

Consent: What Constitutes Rape?

By
Stanley Alieke
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0

There is a debate currently going on on social media about what constitutes rape. It spanned off from a lady that posted that her partner penetrated her while she was sleeping and she didn’t give express consent for the partner to have sex with her and she felt violated and raped even though she has been sexually active with the guy. 

Some other lady in support of her added that “Inserting your penis into your partner (even if you both are married) while she is asleep or unconscious is rape” but some other ladies in disagreement stated that as much as she has been having sex with the guy and the guy is her partner, they can have sex any time even while she’s asleep or unconscious or didn’t give express approval for the act.

Well, the issue of rape can be blurry sometimes, especially when it involves partners who have been sexually active with each other but no matter how dicey you may argue it to be it is always advisable for one to err on the side of caution, hence what you need to guild you is what the statute says as to what constitutes rape and what does not constitute rape. In all these, the keyword as to what constitutes rape is “consent”. Does the partner consent to you having sex with him or her at that point in time? It does not matter if you both have been sexually active or married to each out; does he or she approve or expressly consent to the sex at that point; if the answer is no, then it is rape. 

Consent here has to be expressed, it has to be unequivocal and succinct. It must not be implied or imposed, you must be sure that the partner approves of you having sex with him or her at that point.

Rape therefore means that there is no “express consent” for the sexual act. Even if he or she allows or permits it; that does not translate to express consent. It is still rape 

Numerous school of thought has given the concept of rape a wider definition and it has been broadly defined to be an unlawful sexual activity, most often involving sexual intercourse against the will of the victim through force or the threat of force or with an individual who is incapable of giving legal consent because of minor status, mental illness, mental deficiency, intoxication, unconsciousness or deception. Some other schools of thought have even taken the meaning of rape to another whole new level. Rape has been subsumed under that of sexual assault. Rape was previously considered to be caused by unbridled sexual desire, but it is now understood as a pathological assertion of power over a powerless victim. 

Definitions of rape include the word, “unconscious”, this means that when a person is sleeping or unconscious or intoxicated, he or she is in a state where express and unequivocal consent can be given and you cannot say to have obtained consent from a person in such a state, therefore having a carnal knowledge with such a person constitutes rape; it doesn’t matter if you both have been having sex before then. 

It’s so important for you to obtain verbal consent and not just non-verbal consent. Ridiculous as it may sound, the verbal consent must be “let us have sex and he or she answers”yes ” or”okay ” in clear terms to the demand for sex. It’s tricky that she or he removing their clothes does not translate to giving consent for the sex. To be on the side of caution, the consent must be expressed, oral and vocal.

Mind you, consent can be withdrawn at any time even at the point of the sex and once it is withdrawn you are expected to disembark immediately or else from the moment it is withdrawn and you are still at it, it becomes rape. This means that during the cause of the act and you hear the word “stop”, you are to stop immediately or else from there henceforth it becomes rape. 

Rape is a serious crime and attracts serious punishment in almost all jurisdictions around the world. In Nigeria, the punishment for rape is life imprisonment while the punishment for attempted rape is fourteen years jail term as provided in section 358/359 of the criminal code act.

 

Nigerian Government Removes VAT and Customs Duty on Cooking Gas Imports to Reduce Costs

By
Samuel Nwite
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0

In a bid to reduce the cost of cooking gas in the country, the Federal Government of Nigeria has announced the removal of customs duty and value-added tax (VAT) on the importation of liquefied petroleum gas (LPG), commonly known as cooking gas, and its associated equipment.

The decision was conveyed in a letter dated November 28, 2023, signed by Wale Edun, the Minister of Finance and Coordinating Minister of the Economy.

The letter, addressed to key officials including the Special Adviser to the President on Energy, the Comptroller-General of the Nigeria Customs Service (NCS), and the Chairman of the Federal Inland Revenue Service (FIRS), affirms President Bola Tinubu’s commitment to improving the investment climate, increasing LPG supply to meet local demand, reducing market prices, and promoting clean cooking practices.

“In line with His Excellency, President Bola Tinubu’s commitment to improving the investment climate in Nigeria, increasing the supply of LPG to meet local demand, reducing market prices and promoting clean cooking practices, I hereby affirm Presidential directive dated July 29, 2022, with reference number PRES/88/MPR/99,” the letter reads.

The directive exempts the importation of LPG, utilizing specific HS codes, from import duty and VAT. Effective immediately, the importation of LPG will incur a 0% duty rate and 0% VAT rate.

“Accordingly, the importation of LPG utilizing HS Codes 2711.12.00.00, 2711.13.00.00 and 2711.19.00.00 is exempt from Import Duty and Value-Added Tax. Consequently, the Importation of LPG shall incur a 0% duty rate and 0% VAT rate, effective immediately,” the letter added.

The ministry has also directed the Nigerian Customs Service to comply with the presidential directive and withdraw debit notes issued to petroleum marketers who have imported LPG within a specified timeframe.

Additionally, the letter outlines other items exempted from VAT and duty payments, including LPG cylinders, LPG cascades, gas leak detectors, steel pipes, steel valves and fittings, LPG dispensers, gas generators, and LPG trucks, among others.

This move follows recent concerns raised by the Minister for Petroleum Resources (Gas), Ekperikpe Ekpo, about the rising cost of cooking gas in Nigeria. He emphasized the need for government intervention to ensure sufficient domestic supply and affordability. The government aims to address these challenges promptly through strategic measures and collaboration with industry stakeholders.

The Ministry of Finance also directed the Nigerian Customs Service to comply with the presidential directive and withdraw all debit notes issued to petroleum marketers who have imported LPG using specific codes from August 26, 2019, to the present date.

This decision comes in response to concerns raised by Nigerians over the rising cost of gas. A 12.5 kg cooking gas costs about N13,000 in Lagos. The Nigerian Bureau of Statistics (NBS) highlighted in its October Consumer Price Index (CPI) report that the average retail price for refilling a 5kg cylinder of cooking gas surged by 8.89 percent month-on-month. This increase took the price from N4,189.96 in September 2023 to N4,562.51 in October 2023, marking a 14 percent rise.

The decision to remove VAT and customs duty on cooking gas imports is expected to contribute to lowering the cost of cooking gas and making it more accessible to the Nigerian populace.

What Does the Forbes Most Influential Award Mean for African Women?

By
Paul Ugbede Godwin
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0

Forbes, the global media company that focuses on business, investing, technology, entrepreneurship, leadership, and lifestyle, has recently announced its list of the 100 most influential women in the world for 2023. Among them, there are 10 African women who have made remarkable achievements in various fields such as politics, business, education, health, media, and social activism. These women are:

  • Ngozi Okonjo-Iweala, the director-general of the World Trade Organization and former finance minister of Nigeria.
  • Tsitsi Dangarembga, the Zimbabwean novelist, filmmaker, and activist who was shortlisted for the Booker Prize in 2020.
  • Amina J. Mohammed, the deputy secretary-general of the United Nations and former environment minister of Nigeria.
  • Ellen Johnson Sirleaf, the former president of Liberia and Nobel Peace Prize laureate.
  • Chimamanda Ngozi Adichie, the Nigerian writer and feminist icon whose books have been translated into over 30 languages.
  • Fatou Bensouda, the chief prosecutor of the International Criminal Court and former justice minister of The Gambia.
  • Sahle-Work Zewde, the president of Ethiopia and the only female head of state in Africa.
  • Phumzile Mlambo-Ngcuka, the executive director of UN Women and former deputy president of South Africa.
  • Yvonne Aki-Sawyerr, the mayor of Freetown, Sierra Leone and a champion of urban resilience and sustainability.
  • Oby Ezekwesili, the co-founder of Bring Back Our Girls and former education minister of Nigeria.

These women represent the diversity, strength, and potential of African women who are shaping the continent and the world with their vision, leadership, and courage. They are role models for millions of young girls and women who aspire to follow their footsteps and make a difference in their communities and beyond.

The Forbes most influential award is not only a recognition of their individual achievements but also a celebration of their collective impact. It is a testament to the fact that African women are no longer invisible or marginalized in the global arena. They are at the forefront of tackling some of the most pressing challenges facing humanity such as poverty, inequality, climate change, conflict, and human rights. They are also contributing to the economic growth, social development, and cultural diversity of their countries and regions.

The Forbes most influential award is also a reminder of the challenges and barriers that African women still face in their daily lives. Despite their remarkable accomplishments, they often have to overcome discrimination, violence, harassment, and stereotypes that limit their opportunities and choices. They also have to balance multiple roles and responsibilities as mothers, wives, daughters, sisters, workers, leaders, and citizens. They have to deal with the lack of resources, infrastructure, education, health care, and security that affect their well-being and potential.

The Forbes most influential award is therefore a call for action to support and empower African women in all spheres of life. It is a call for governments, businesses, civil society, media, and individuals to recognize their rights, respect their dignity, value their contributions, and invest in their futures. It is a call for African women themselves to continue to pursue their dreams, passions, and goals with confidence and determination. It is a call for all of us to join forces and work together for a more inclusive, equitable, and sustainable world.

China Vs USA Crypto Supremacy

By
Paul Ugbede Godwin
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0

The global landscape of cryptocurrencies is changing rapidly, as two of the world’s most powerful nations compete for dominance in this emerging field. China and the USA have different approaches, goals and strategies when it comes to crypto, and their actions have significant implications for the rest of the world. We will compare and contrast the main aspects of China’s and USA’s crypto policies and discuss the potential outcomes and challenges for both countries and the global crypto community.

China: Centralized control and innovation

China has been a pioneer in the development and adoption of cryptocurrencies, especially in the areas of blockchain technology, digital payments and mining. China is home to some of the largest and most influential crypto companies, such as Binance, Huobi, OKEx, Ant Group and Bitmain. China also has a huge market of crypto users, with millions of people using digital wallets and platforms to trade, invest and transact with cryptocurrencies.

However, China’s crypto landscape is also characterized by a high degree of centralization and regulation. The Chinese government has a tight grip on the crypto industry, imposing strict rules and bans on various aspects of crypto activities. For example, China has banned initial coin offerings (ICOs), crypto exchanges, foreign platforms and mining operations in certain regions. China has also cracked down on illegal or fraudulent crypto schemes, such as Ponzi schemes, money laundering and tax evasion.

One of the main reasons for China’s strict regulation of crypto is its ambition to launch its own digital currency, the digital yuan or e-CNY. The digital yuan is a central bank digital currency (CBDC) that is issued and controlled by the People’s Bank of China (PBOC). The digital yuan is designed to be a legal tender that can be used for payments, settlements and transfers within China and abroad. The digital yuan is also intended to enhance China’s financial sovereignty, security and efficiency, as well as to challenge the dominance of the US dollar in the global financial system.

The digital yuan is currently in the testing phase, with several pilot projects running in various cities and regions across China. The PBOC has also partnered with several domestic and foreign institutions, such as banks, payment platforms, retailers and telecom operators, to facilitate the adoption and use of the digital yuan. The PBOC has not announced a specific timeline for the official launch of the digital yuan, but some experts expect it to happen before the 2024 Winter Olympics in Paris.

USA: Decentralized innovation and regulation

The USA is another major player in the global crypto scene, with a vibrant and diverse ecosystem of crypto companies, investors, developers and users. The USA is home to some of the most popular and influential crypto platforms, such as Coinbase, Kraken, Gemini, PayPal and Square. The USA also has a large and active market of crypto users, with millions of people buying, selling and holding cryptocurrencies.

However, unlike China, the USA does not have a clear or consistent policy or regulation on crypto. Instead, the USA has a decentralized and fragmented approach to crypto regulation, with different federal agencies, states and courts having different views and jurisdictions on various aspects of crypto activities. For example,

  • The Securities and Exchange Commission (SEC) treats some cryptocurrencies as securities that are subject to registration and disclosure requirements.

  • The Commodity Futures Trading Commission (CFTC) treats some cryptocurrencies as commodities that are subject to derivatives regulation.

  • The Internal Revenue Service (IRS) treats cryptocurrencies as property that are subject to taxation.

  • The Financial Crimes Enforcement Network (FinCEN) treats cryptocurrencies as money that are subject to anti-money laundering (AML) and counter-terrorism financing (CTF) rules.

  • The Office of the Comptroller of the Currency (OCC) treats cryptocurrencies as assets that can be held by banks.

  • The Federal Reserve (Fed) treats cryptocurrencies as payment systems that can be integrated with traditional financial infrastructure.

These different regulatory frameworks create uncertainty, complexity and inconsistency for crypto companies and users in the USA. They also create challenges for innovation and competition in the crypto industry, as some crypto companies face barriers or restrictions to operate or expand in certain states or markets. Moreover, they create risks for compliance and enforcement, as some crypto companies or users may violate or evade existing laws or regulations.

One of the main challenges for the USA’s crypto policy is its lack of a national digital currency or CBDC. Unlike China, the USA does not have a clear or urgent need or plan to launch its own digital currency. The US dollar is still the dominant reserve currency in the world, and the existing financial system is still relatively stable and efficient. However, some experts argue that the USA should consider developing its own CBDC to keep up with the global trend of digitalization and innovation in finance. A US CBDC could potentially enhance the US financial sovereignty, security and efficiency, as well as to counter the threat of China’s digital yuan.

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