Nulec Industries Plc V. Dyson Technologies Ltd & Anor (2022)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

On 11/2/2011, the Appellant made an application to the second Respondent for the registration of Air Amplifier, Air Multiplier and Bladeless Fan, as Trademarks. In the Acceptance Form dated 16/2/2011, the second Respondent specified that the said Trademarks “will in due course be advertised in the Trademark Journal”, and the Trademarks were published in the said Trademark Journal on 15/9/2012.

Meanwhile, on 7/12/2011, the first Respondent filed a Notice of Opposition to the said registration, and in response, the Appellant filed its Counter-Statements. However, while opposition proceedings were still pending, the Appellant, by an Originating Motion dated 14/2/2013, commenced Suit No. FHC/L/187/2013 at the Federal High Court, praying for the determination of the following questions:

1. Whether having regard to the provisions of Section 4(1) & (2) and Sections 12(1) & (2) and Part 1, Second Schedule (items 31 & 43) of the Constitution; the provision of Section 44(5) & (6) of the Trademark Act Cap T 13 LFN 2004 is null and void for the reason of its inconsistency with the forgoing Provisions of the 1999 Constitution; and
2. If the answer to question 1, is in the affirmative, whether the PARIS Convention and the TRIPS Agreement are applicable in Nigeria by virtue of Section 44 of the Trademarks Act, Cap T 13, Laws of the Federation of Nigeria, 2004 and
3. If the answer to question 2, is in the negative, whether the 1st Defendant is entitled to, pursuant to the TRIPS Agreement and the PARIS Convention oppose the Application of the Plaintiff to register Trademarks, which 2nd Defendant has accepted to register.

AND if the answer to questions 2 & 3 above, are in the negative, the Plaintiff seeks: –

1. A Declaration that the 1st Defendant is not entitled to oppose the registration of the Trademarks; 1. Air Amplifier; 2. Air Multiplier; and 3. Bladeless Fan; and
2. A Declaration that the Plaintiff is entitled to have the Trademarks; Air Amplifier, Air Multiplier, and Bladeless Fan, registered in its favour; and
3. An Order compelling the 2nd Defendant to register the Trademarks, Air Amplifier, Air Multiplier, and Bladeless Fan, in favour of the Plaintiff.
4. And for such order or orders as this Honourable Court deems fit to make.

The first Respondent, who was duly served by substituted means, did not file any processes, or put in appearance when the Application was heard on 17/10/2013, and the situation remained the same on 20/11/2013, when the learned trial Judge, Kurya, J., delivered his ruling, wherein he granted the Reliefs sought because –

“It is pertinent to point it out clear at this juncture that this judgment is delivered based on the strength of the argument one-sided. I have no argument on the other side I can use to weigh the one-sided argument. And as an Independent and an impartible Judge, I am only to judge and not to argue the case for the other party. From the above facts and circumstances of this case, I have no other option than to answer Question 1 – – in the affirmative. Also, to answer Questions 2 & 3 – – in the negative. Finally, the Plaintiff’s prayer, as listed in the Originating Motion, is hereby granted. Consequently, it is hereby declared:

1. That the 1st Defendant is NOT entitled to oppose the registration of the trademarks – (a) Air Multiplier (b) Air Amplifier and (c) Bladeless fan.
2. The Plaintiff is entitled to have the trademarks – (a) Air Multiplier, (b) Air Amplifier and (c) Bladeless fan
3. An order is hereby made compelling the 2nd Defendant to register the trademarks – (a) Air Multiplier, (b) Air Amplifier and (c) Bladeless fan

The Registrar of this Court is to draft an order to that effect.

Dissatisfied, the first Respondent appealed to the Court of Appeal with a Notice of Appeal, which contained six Grounds of Appeal, and its major complaint was that the learned trial Judge erred when he assumed jurisdiction over the Suit prior to the conclusion of the opposition proceedings before the second Respondent.

The Appellant and the first Respondent filed and adopted their respective Briefs of Arguments. The second Respondent did not file any processes or brief, and in its judgment delivered on 13/6/2017, the Court of Appeal observed that:

“The Trademarks Act is one legislation that made specific provisions on how the jurisdiction of the Federal High Court on Trademarks matters can be exercised. The contention of the 1st Respondent is that the Trademarks Act cannot whittle down the jurisdiction bestowed on the Federal High Court by the Constitution. Furthermore, that judicial powers are strictly given to the Courts by Section 6 of the Constitution. It cannot be contradicted that the Constitution clearly referred to the restriction of jurisdiction to the Federal High Court on the relevant issues in this case, i.e., trademarks, to the exclusion of other Courts. There is therefore no other Court in contemplation here other than the Federal High Court. However, the only body exercising quasi-judicial powers is the Registrar of Trademarks, so when the Respondent calls into play Section 6 of the Constitution, this argument is not just diversionary but untenable. The Section cannot apply to administrative Tribunals or Investigative Boards, which are not Courts. Such bodies usually exercise quasi-judicial duties, and their decisions are subject to appeal. The said Section 251(1) did not use the word exclusive original jurisdiction and when read together with Section 28 of the Federal High Court [FHA] Act, the contention of the Respondent becomes pedestrian. The process of resolving objections cannot begin by instituting a fresh Suit before the Federal High Court. The said Section gives the Federal High Court appellate jurisdiction in certain matters – — It is clear therefore that the 2nd Respondent is covered by Section 28 (1)(d) (FHA Act). The Trademarks Act empowered the Registrar to resolve objections and that such decisions are appealable to the Federal High Court. The Trademarks Act specifically deals with matters concerning the subject matter in this Appeal and it set out a procedure of dealing with different issues relating to Trademarks including registration of Trademarks and the procedure of determining any objection by the Registrar of Trademarks. The relevant sections are Sections 20 and 21 – – – The procedure delicately stipulated in [the] Sections is clear and straight forward. Those are not powers of the Federal High Court and even though the Court has overall jurisdiction on Trademark matters, the Trademarks Act has circumscribed the stage at which the jurisdiction of Federal High Court can be activated. Being a product of law, the procedure must be strictly complied with failing which it will breach the third feature required for the jurisdiction of the Court and consequently erode the Courts of its jurisdiction, the Act provides a pre-condition to the exercise of jurisdiction by the Federal High Court.

After considering the position of the law on jurisdiction, it concluded as follows:

“Any party seeking to invoke the jurisdiction of Federal High Court in Trademark issues pertaining to registration of Trademarks and any objection thereof must first have a decision by the 2nd Respondent before proceeding to the Federal High Court. It means that the Federal High Court has no original jurisdiction in matters pertaining to any objection to the registration of trademarks. It is only an appeal from a decision by the Registrar of Trademarks on the registration of trademarks that the Federal High Court can have jurisdiction. That is not to say that the Federal High Court does not have jurisdiction on other aspects. In fact, there are areas that both Federal High Court and the Registrar of Trademarks share jurisdiction – Section 56 of the Trademarks Act. The area in issue here is opposition to registration of Trademarks in which the law provided for condition precedents to the activation of the jurisdiction of Federal High Court – – – In terms of the Parties, the proceedings before the Registrar of Trademarks cannot be Court proceedings and the parties are not the same between that proceeding and the one before the Federal High Court because the Registrar is a Party in the case leading to the appeal. The Respondent merely jumped the gun by coming to the Federal High Court when it should have waited for a decision by the Registrar on the opposition. I would not, therefore, agree with the Appellant that the action of the 1st Respondent can be classified as abuse of process – – I find that the Federal High Court lacked the jurisdiction to determine the claim of the Respondent as the Court of first instance. The matter can only come to the Federal High Court by way of appeal from a decision of the Registrar of Trademarks. The absence of such a decision, therefore, divested the Federal High Court of jurisdiction.

Put out, the Appellant filed a Notice of Appeal containing two Grounds of Appeal in this Court, and it distilled the following two issues for determination in its brief:

1. Whether having regards to the provisions of Sections 6 and 251(1)(f) of the 1999 Constitution and Sections 7, 2, 28 of the Federal High Court Act Cap F12 LFN 2004 exclusive original jurisdiction is granted to the Federal High Court in matters pertaining to civil causes arising from any Federal enactments relating to copyright, patent, designs, trademarks and passing-off, industrial designs, and; if the answer to the above issue in the positive; whether the exclusive original jurisdiction so granted is in any manner impinged or impeded upon or abridged by the provisions of Sections 1, 18, 20 and 22 of the Trademarks Act, Cap T 13, Laws of the Federation 2004.
2. Whether having regards to the fact that the decision of the Federal High Court, which was the subject of the Appeal before the Court below, was predicated on the lack of locus standi of the 1st Respondent before the Registrar of Trademarks to challenge and oppose the registration of trademarks, the Appellant was not entitled to raise the issue at the Court below being a jurisdictional one and the Court below ought to fail to consider and decide the issue.

The first Respondent also formulated two Issues for Determination, and that is: