The competing claims of the parties in this appeal relate to the registration of a trade mark about one antibiotic registered by the appellant under the trade mark of GONOCIN as against the respondent which had its own registered as GONORCIN. Prima facie quite apart from the claim of infringement of the trade mark one is likely to be misled that it is also a passing off action. But their claim and counter-claim leave no one in doubt that priority of registration and continuous use claimed by the respondent played a dominant role in their claims.

Evidence was called by both parties. It was on 19th June, 1973 that the 1st plaintiff registered GONOCIN as a trade mark with Registration No.2740. A certified true copy of the registration was admitted in evidence as Exhibit A. It is not necessary to go into the controversy whether the 1st plaintiff could have maintained an action in this country bearing in mind it was a foreign company. That issue was resolved in the court of trial and was not an issue in the lower court nor has been raised in this court. I will come to the issues before us shortly.

The first plaintiff manufactured the Drug which was marketed by the 2nd plaintiff as GONOCIN. The plaintiffs later found in the Nigerian Market a similar product under the trade mark GONORCIN and was marketed by the defendant. The sample of GONOCIN was admitted in evidence as Exhibit D while the sample of GONORCIN, so to say the offending product, was admitted in evidence as Exhibit E. It was also the case of the plaintiffs that the 2nd plaintiff was incorporated under the Companies Act, 1968 on 2nd December, 1980. But before the incorporation of 2nd plaintiff, the GONOCIN has been introduced to the Nigerian Market by J.L. Morison and Company and it was after the incorporation of 2nd defendant company that it took over the marketing of the drug from J.L. Morrison and Company, Exhibit D is simply described as GONOCIN 030 and bore the label “GONOCIN 030”. The 1st plaintiff witness was however unable to say whether GONORCIN registered by the defendant is an antibiotic. He agreed that there is a difference in spelling between the two products. Another witness called Ayodele Oboise confirmed that he bought GONORCIN i.e. Exhibit E from a Chemist. The last witness for the plaintiff was one George Eze who identified Exhibit D and E as having been bought from the plaintiff and defendants respectively.

In their own defence Chief Nkadi Chiwete the Chairman and Managing Director of the defendant company gave evidence that the defendant company was formerly registered under the business name of Vitality Medicine Store before it was incorporated as a limited liability company in May, 1980. It was incorporated and registered as VITALITY PHARMACEUTICALS LTD. Before the incorporation they were the representative of Dr. Herbrand K.G. Company the manufacturers of other drugs and antibiotics. The defendants were the sole agents of GONORCIN i.e. Exhibit E a product of Dr. Herbrand K.G. and they have been dealing with this drug - Gonorcin – since 1968. Certain proforma invoice and letter dated 16th May, 1973 were admitted in evidence as Exhibits G-G3 and J respectively. Agreement between the defendants and the German Company was also admitted as Exhibit K. The witness did not agree the Exhibits D and E were similar. The first time he saw Gonocin 030 in the market was 1978 whereas the defendants started marketing Gonorcin in 1968. Receipts for sale of Gonorcin since 1969 were admitted in evidence as Exhibits L-L3. He also gave evidence about the counter-claim.

Under cross-examination, he said he registered as the Proprietor of Vitality Medicine Stores in 1956 before it was incorporated in May, 1980. The only witness called by the defendant was one Patrick Onwudinjo who was a staff of the defendant company between 1971-1980. He identified Exhibit E as one of the products of the defendants when he was working with them. Exhibit D and E were not similar.