- Dyktrade Ltd v. Omnia Nig. Ltd
- ₦ 200
Dyktrade Ltd v. Omnia Nig. Ltd
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.
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.
- 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.
- 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.
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”