Patkun Industries Ltd. V. Niger Shoes Manufacturing Company Ltd (1988)

LawGlobal-Hub Lead Judgment Report

G. KARIBI-WHYTE, J.S.C.

This appeal was after argument on the 27th September, 1988 summarily dismissed with costs assessed at N500 to the Respondents. I indicated then that I will give my reasons today. I herein below state my reasons.

The very narrow point of law which fell for determination in the Federal Revenue Court was whether that Court had jurisdiction in an action for infringement of a registered trademark where damages for passing-off of the goods has also been claimed.

The appeal to this court arose in this way. Plaintiff hereinafter referred to as the Respondent brought an action dated 27/11/79 in the Federal High Court, Enugu, claiming from the Defendants hereinafter referred to as the Appellants as follows:-

CLAIM

“(1) The Plaintiff who has its registered office at No.132 Awka Road, Onitsha is the registered proprietor of trade mark described as NISHMACO and registered as No. 17229 on 6/2/66 under Section 22 and regulation 35 of Cap. 199 laws of Nigeria in respect of shoes, slippers (Foot wears) and all goods included in the class.

(2) On or about the month of November, 1979 at Onitsha, Ichi and elsewhere in Nigeria the Defendants as retailers, distributors and Importers or Agents thereof, sold and distributed and Imported or caused to be sold, distributed and Imported goods and in particular SLIPPERS, not of the Plaintiffs manufacture and merchandise, as and for goods of the Plaintiffs manufacture or merchandise, and/OR enabling others to do such act, by infringement of the Plaintiffs Trade Mark namely NISHMACO and passing off same thereof.

Whereof the plaintiff claims against the Defendant jointly and severally:-

(a) A Declaration that the Defendants by themselves or through their Agents are not entitled to pass off goods not of the Plaintiffs manufacture or merchandise (as hitherto they have been doing), as and for goods of the Plaintiffs manufacture and merchandise and/OR (enabling others to do such act).

(b) An Injunction, restraining the Defendants their Servants and Agents from passing off goods not of the Plaintiffs manufacture or merchandise and/OR enabling others to do such act.

(c) Delivery of all cartons, wrappers, labels, blocks, discs or stamps bearing any mark of NISHMACO or set up that would be in breach of the Injunction prayed for.

(d) An account of the profits made by the Defendants by reason of their having carried out the said act of passing off or alternatively an enquiry as to damages.

(e) In the alternative (d) above N1,000,000.00 (one million Naira) as damages.

(f) Costs of these proceedings.