BEST LAW REPORT SUBSCRIPTION PRICE!!

  • Ferodo Ltd v. Ibeto Industries Ltd
  • 203
  • 2004-04-19
  • ₦ 200
  • Buy Now

Ferodo Ltd v. Ibeto Industries Ltd

FERODO LIMITED

FERODO NIGERIA LIMITED

V

IBETO INDUSTRIES LIMITED

SUPREME COURT OF NIGERIA

SALIHU MODIBBO ALFA BELGORE, JSC ( Presided )

UTHMAN MOHAMMED, JSC

SYVELSTER UMARU ONU, JSC

NIKI TOBI, JSC

DAHIRU MUSDAPHER, JSC ( Read the Lead Judgment )

SC. 95/1999

FRIDAY, 6TH FEBRUARY, 2004

APPEAL - Concurrent findings of fact of lower courts - Restraint on Supreme Court to interfere with - When will interfere

APPEAL - Grounds of appeal - Where struck out - Effect of arguments canvassed in support of

JUDGMENT AND ORDERS - Obiter dictum - Usefulness of - Bindingness of in some circumstances

STATUTE - Trade Marks Act, 1990 Section 11 vis-a-vis section 15 - Impropriety of importing an interrelationship

STATUTE - Trade Marks Act, 1990, section 5 - Interpretation of

STATUTE - Trade Marks Act, 1990, section 9 - Interpretation of

TORTS - Passing off - Proof of - Need to prove distinctiveness of trade mark before passing-off can be effectively claimed

TRADE MARKS - Distinctiveness - Meaning of - How a trade mark acquires its distinctive quality and possibility of loss of distinctiveness

TRADE MARKS - Essence of

TRADE MARKS - Infringement of - Factors to be considered in determining whether two trade marks are identical or of close resemblance within the provisions of sections 11 and 13 of the Trade Marks Act, 1990

TRADE MARKS - Infringement of - Tests for determining

TRADE MARKS - Infringement of - Whether look alike products detract from rights of trade mark holder

TRADE MARKS - ‘Mark’ and ‘trade mark’ - Definitions of

TRADE MARKS - Passing-off - Distinctiveness of trade mark - Need to prove before passing-off can be effectively claimed

TRADE MARKS - Registration of trade mark - Merits thereof

WORDS AND PHRASES - ‘Component’ - Definition of WORDS AND PHRASES - ‘Mark’ and ‘trade mark’ - Definitions of

Issues:

1.             Whether the Court of Appeal in dismissing the appeal, was right in holding that the 1st plaintiff’s registered trade mark was the word mark ‘FERODO’

2.             Whether the Court of Appeal in dismissing the Appeal, was right in holding that the defendant did not infringe the 1st plaintiff’s registered trade mark.

Facts:

The 1st plaintiff is an English company while the 2nd plaintiff is its Nigerian associated company. The plaintiffs are the manufactures and sellers of the FERODO brand of brake linings for motor vehicles sold in cardboard packages registered by the 1st plaintiff as Trade Mark No 38604. The plaintiffs claim that the design or get up of the packages in which they sell their FERODO brake linings is distinctive to them and their products. The defendant, an indigenous company claims to manufacture and sell brake linings under the brand name ‘UNION’.

The plaintiffs in a suit at the Federal High Court, Lagos Division, claimed essentially that the packaging under which the defendant marketed its UNION brake lining is so similar to the plaintiffs’ packaging that it constitutes an infringement of the plaintiffs’ registered trade mark and that the sale of the defendant’s brake lining also amounted to the passing-off of the plaintiffs’ products. The trial court dismissed the suit. It held inter alia that the mark registered by the 1st plaintiff was the word mark ‘FERODO’ and the brand name ‘UNION’ or ‘UNION SUPA’ of the defendant could not by any manner amount to an infringement of ‘FERODO’. The court further held that the red, black, and white colour combinations on the packaging of the plaintiffs’ products were not distinctive to them as envisaged by section 9 of the Trade Marks Act, 1990, but rather, was common to the trade of brake linings. The plaintiffs’ appeal to the Court of Appeal was also dismissed.

Dissatisfied, they appealed to the Supreme Court.