BEST LAW REPORT SUBSCRIPTION PRICE!!

  • Dyktrade Ltd v. Omnia Nig. Ltd
  • 11
  • 2000-08-14
  • ₦ 200
  • Buy Now

Dyktrade Ltd v. Omnia Nig. Ltd

DYKTRADE LIMITED

V

OMNIA NIGERIA LIMITED

SUPREME COURT OF NIGERIA

S. M. A. BELGORE, J.S.C. ( Presided and Read the Leading Judgment )

MICHAEL EKUNDAYO OGUNDARE, J.S.C.

UTHMAN MOHAMMED, J.S.C.

ALOYSIUS IYORGYER KATSINA-ALU, J.S.C.

OLUFEMI AKINTOLA EJIWUNMI, J.S.C.

SC.57/1995

FRIDAY 14TH  JULY, 2000

ACTION - Cause of action - Infringement of Trade Marks - When cause of action arises

ACTION - Infringement of Trade Mark - Right to sue for - Who has

COURT - Reliefs not claimed - Attitude of Court.

COURT - Where no ambiguity in statute - Duty of Court

INJUNCTION - Discretionary nature of  - When granted

INJUNCTION - To restrain use of Trade Marks - Who is entitled to - Section 3, Trade Marks  Act - Duty of Applicant.

INTERPRETATION OF STATUTE - Where statute unambiguous - Attitude of  Court

TRADE MARKS - Application for registration of Trade Mark - Duty of Registrar

TRADE MARKS - Cause of action for infringement of  - When arises

TRADE MARKS - Injunction to restrain use of - Applicant’s application for registration pending - Mark not yet registered  - Whether applicant entitled to injunction - Section 3, Trade Marks Act

TRADE MARKS - Registration of Trade Mark - Effective date of

TRADE MARKS - Registration of Trade Mark - Entitlement of Proprietor

TRADE MARKS - Status of “Proprietor” in relation thereto - How acquired

TRADE MARKS - Status of “voidable registration” as held in Wellcome  Foundation vs. Ranboxy Mantori Nig. Ltd (Unreported FHC/L/35/90 of 31.10.90) Whether justifiable under Trade Marks Act, Cap. 436 Laws of the Federation of Nigeria, 1990.

Issues:

  1. Whether the appellant is entitled to an order of injunction restraining the respondent from infringing the ‘Trade Mark’ Super Rocket  when the Trade Mark has not been registered with the Registrar of Trade Marks.
  2. If the answer to the above is no, having regard to the prayers sought on the motion paper whether the appellant  is entitled to an injunction against passing off of its goods.

Facts:

In the Federal High Court, the plaintiff/appellant claimed inter alia for an injunction to restrain the defendant/respondent from infringing the plaintiff’s Trade Mark “Super Rocket” applied for and accepted in Nigeria under No. TP 11933/91/5.

The appellant also applied for an ex parte order restraining the respondent from manufacturing, selling, offering for sale grinding stones inscribed with the Trade Mark “Super Rocket”. The ex parte order was granted. The appellant also filed another application on notice. The case for the appellant was that its application for registration of the Trade mark “Super Rocket” has been accepted by the Registrar of Trade Marks.

The learned trial judge discharged the ex parte order, refused the interlocutory injunction sought and struck out the case on the ground that the appellant has no cause of action since the Trade mark was not yet registered.

On the appeal, the Court of Appeal affirmed the decision of the trial judge on the injunction but stated that the case ought not to have been struck out. The appellant further appealed to the Supreme Court. Section 3, Trade marks Act relevant to the appeal reads:

“3. No person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark; but nothing in this Act shall be taken to affect rights of action against any person for  passing off goods as the goods of another person or remedies in respect thereof”