Group Danone & Anor V. Voltic (Nigeria) Limited (2008)

LAWGLOBAL HUB Lead Judgment Report

F.F. TABAI, J.S.C.

This is an appeal against the ruling of the Court of Appeal, Lagos Division on the 18th of July 2002. The ruling itself was sequel to an application therein dated and filed on the 27th of June 2002. The motion prayed for:

(i) An order suspending varying or staying in terms set forth in the schedule hereto the exparte Orders granted by the Federal High Court (Honourable Justice OIotu J) on 28th of February 2002 in favour of (1) Groupe Danone (2) Society Des Eaux De Volvic.

(ii) An Order of Stay of Proceedings pending the determination of the appeal filed against the ruling of Honourable Justice Olotu J delivered on 3rd June 2002.

(iii) Such further or other Orders as this Honourable Court may deem fit to make in the circumstances.

Schedule

Term of Variation Proposed

“Discharging, suspending or staying that part of the order of the Federal High Court restraining the Defendant from selling or offering for sale Table Water in packages containers bearing the word “La Voltic” pending the hearing of the appeal now pending before this Honourable Court.”

The grounds for the application were stated therein to be:

(a) That an appeal (which raises substantial issues) has been filed against the ruling of the learned trial Judge refusing to discharge the order of ex parte granted against the applicants.

(b) That the Applicant is likely to be completely paralysed and wound-up if the ex-parte injunction is not varied before the hearing of the appeal.

(c) That the failure of the trial judge to entertain the application for stay or vary the injunction effectively grants to the plaintiff reliefs III(c) in the plaintiff’s particulars of claim notwithstanding the fact that that question whether La Voltic is deceptively similar to “Voltic is yet to be determined.

For thorough understanding of the issues involved, it is necessary to state the salient facts up to the filing of the motion. The suit was initiated on the 26/2/2002 when the writ of summons was issued. Filed along the writ of summons was a 28 paragraph Statement of Claim. The reliefs claimed as contained in the writ of summons and paragraph 28 of the Statement of Claim are:-

(i) A Declaration that the use of the words “”La Voltic” by the defendant constitutes an infringement of the Plaintiffs’ registered trade mark “Volvic”” No. 39259 in Class 32.