Metropolitan Industries (Nigeria) Limited v. Industrial Applications (Nigeria) Limited (1973)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C.

In the Lagos High Court in Suit No.LD/66/71, the plaintiff claimed against the defendant –

1.”An injunction restraining the defendant, its servants or agents from manufacturing or, causing to be manufactured; from marketing or causing to be sold or exposed for sale any plastic sandals or shoes bearing the plaintiffs’ registered design No-934784 or any obvious or colourable imitation thereof;

2. 50,000 (Fifty Thousand Pounds) damages for the infringement by the defendant of the plaintiff’s said registered design or any enquiry into an account of sales of all plastic goods to which the said design or an obvious or colourable imitation thereof shall have been applied and of the profits made thereon;
3. Delivery for public destruction of all plastic goods to which the said design or an obvious or colourable imitation thereof shall have been applied, the moulds, designs and other manufacturing materials that are in possession or under the control of the defendant, its servants or agents;
4. Costs;
5. Further or other reliefs.

The defendant continues to market and expose for sale the plastic footwear similar and/or identical to the registered design of the plaintiff within the city of Lagos and, in fact, all over the Federation in spite of warning from the plaintiff.”

To this claim, the defendant counter-claimed as follows;-

“The defendant counterclaim for a declaration that the plaintiff have not acquired any exclusive privileges and rights in Nigeria in the design or purported design registered in the United Kingdom as Number 934784.”

Paragraphs 3 – 9 of the plaintiff’s Statement of Claim read

“3. Sometime in 1967, the plaintiff designed a particular style of plastic footwear known as ‘NIGERIAN’, and, in January, 1968, registered the said design as No.934784 under the Registered Design Act, 1949, in the United Kingdom.

4.The plaintiff commenced production of footwear of the said registered designed in January 1968.

5.The plaintiff published the fact that the design was registered in the names of the plaintiffs in the issues of the Daily Times of the 31st day of August, 1970 and the 3rd day of September, 1970.

6.The plaintiff marked the Registration No.934784 on their footwear.

7.The defendant, with the knowledge that the said design is registered in the name of the plaintiff and without the licence or written consent of the plaintiff, made an obvious imitation of the footwear of the said registered design and have been manufacturing and selling the said imitation.

8. Further or in the alternative, the defendant fraudulently made an unimportant, minor and/or inessential difference in the design of their own footwear to distinguish it from the design of the plaintiff.
9. In the premises aforesaid, the defendant have infringed the said registered design of the plaintiff and the plaintiff have suffered and will continue to suffer damages unless the defendant is restrained.

In their own Statement of Defence, the defendant averred in paragraphs 4, 5, and 6 thereof as follows:-

“4. The defendant avers that the registration of Registered Design No. 934784 is and has at all material times been invalid for the reasons in the Particulars of Objection delivered herewith.