Ferodo Limited Vs Ibeto Industries Limited (2004)

LAWGLOBAL HUB Lead Judgment Report

DAHIRU MUSDAPHER, JSC. 

The appellants herein were the plaintiffs in the Federal High Court and the appellant at the Court of Appeal, Lagos. The claim in the Federal High Court was against the respondent herein (as the defendant and was in the following terms:-

“An injunction to restrain the defendant whether acting by itself, its servants or agents or any of them, or otherwise howsoever from doing the following acts or any of them that is to say–

(i) Infringing the 1st plaintiff’s registered Trade Mark No. 38604.

(ii) Passing off or causing or enabling or assisting others to pass off the defendant’s UNION brake findings as and for the plaintiffs’ FERODO brake linings.

(iii) Setting or offering for sale or supplying brake linings or brake pads with labels or in packages having distinctive red, black and white package design or get up of the plaintiffs’ FERODO brake Linings’ package design or get up or so closely resembling it as to be calculated to lead to the belief that brake linings not of the plaintiffs’ manufacture and merchandise are products of the plaintiff’s.

DELIVERY UP for obliteration destruction of all brake linings, packages and labels containing the offending Marks or being in the offending design or get up, including printing blocks and other matters the use of which would be a breach of the injunction prayed for.

DAMAGES OF N1,000.000.00

EXEMPLARY OR AGGRAVATED

Damages of N500,000.00.

COSTS.

FURTHER OR OTHER RELIEFS.”

In the 2nd FURTHER AMENDED STATEMENT OF CLAIM filed with the leave of the trial court on 3/12/1991, the above claims were repeated by the plaintiffs.

Now, the facts of the case may be put shortly thus: The first plaintiff is an English company and the second plaintiff is its Nigerian associated company. The plaintiffs are the manufacturers and sellers of the FERODO brand of brake linings for motor vehicles sold in cardboard packages registered by the first plaintiff as Trade Mark No. 38604 and tendered in evidence at the trial as Exhibit C. They claim that the design or get up of packages in which they sell their FERODO brake linings is distinctive to them and to their product. They also claim that they had been in the Nigeria market with their distinctive trade mark for a period for over ten years prior to the suit taken in court.