Subaya Metalware (Nig) Ltd V. Toyota Motor Corp. & Anor (2021)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C. 

The Applicant, who is the first Respondent in the substantive Appeal, is praying the Court for leave to adduce additional evidence on appeal. The Appellant/Respondent (hereafter referred to as the Respondent), was the plaintiff at the Federal High Court wherein it claimed inter alia:

A Declaration that by virtue of a Certificate of Trademark Registration issued to the Plaintiff in Class 9 – and in Class 11 – respectively and particularly the registration since 1996, the Plaintiff is entitled to the exclusive use of the Trademark “LEXUS” in Classes 9 and 11.

The Applicant, as the first Defendant at the trial Court, denied the allegations, and also claimed that it is the registered proprietor and owner of the Trademark LEXUS in Nigeria with respect to vehicles and spare parts in Class 12 of the Fourth Schedule of the Trademarks Act.

But the Applicant failed to tender any proof of registration of its LEXUS trademark registration in the said Class 12, and in his judgment delivered on 21/6/2016, the learned trial Judge, Buba, J., held that –

The failure of the 1st Defendant to tender any proof of registration of its purported LEXUS trademark in any Class whether valid or not – shows clearly that the 1st Defendant lacks any legal right whatsoever to properly defend this Suit and should have simply admitted all the averments of the plaintiff in its Statement of Claim – The Court can only adjudicate this matter based on the preponderance of evidence before [it] as proffered by the Parties and same cannot be assumed or inferred.

The trial Court found in favour of the Respondent, and the Applicant appealed to the Court of Appeal. Although its Appeal was successful, the Court of Appeal also observed in its judgment of 29/12/2017 that:

Exhibit P4 is a detached car stereo System labelled “LEXUS Premium System”. This fact is undisputed by the parties herein. However, the Appellant argued that it does not fall within the categories of goods in respect of which the 1st Respondent owns a registered Trademark within Classes 9 and 11 under the Fourth Schedule of the Trademarks Act. That Exhibit P4 is a component part/apparatus of a vehicle in Class 12. Appellant’s Counsel submitted that the Appellant had shown ownership and proprietorship of the Trademark LEXUS for goods in Class 12. This assertion is, however, not borne by the records or traceable to the evidence generated at the trial. As submitted and rightly too in my view, by learned counsel for the 1st Respondent, there is no evidence on record, particularly Certificate of Registration, to show the existence of any LEXUS Trademark in Class 12, the Appellant did not lead any credible evidence to prove the fact that it is the registered owner or proprietor of the Trademark LEXUS for goods in covers Class 12. Class 12 covers Vehicles; apparatus for locomotion by land, air, or water – Argument of counsel contained in the Brief of Argument cannot take the place of evidence.

At the end of the day, the Court of Appeal found that Exhibit P4 was not used by the Applicant in relation to goods in respect of which the Respondent has a registered Trademark and held that the trial Court erred in concluding that it infringed on the said registered Trademark.

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The Respondent is the aggrieved Party in the substantive Appeal, but the Applicant is praying this Court for leave to adduce additional evidence on appeal by tendering the following documents as Exhibits:

– Certificate of Registration dated 14/1/1997 – for LEXUS & DEVICE in Class 12

– Certificate of Renewal dated 10/1/1997 – for LEXUS & Device in Class 12

– Certificate of Renewal dated 6/12/2010 – for LEXUS & Device in Class 12.