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CaseLaw

Dyktrade Ltd V. Omnia (Nig.) Ltd (2000) CLR 10(e) (CA)

Brief

  • Trade mark
  • Relief not claimed
  • Interlocutory injunction
  • Voidable registration

Facts

The appellant was the plaintiff in the Federal High Court and the appellant at the Court of Appeal. The claim in the Federal High Court was against the defendant (now respondent as it was in the Court of Appeal) as follows:-

An injunction to restrain the defendant from:

  • a
    Infringing on the plaintiff’s trade mark “Super Rocket” applied for and accepted in Nigeria under No. TP 11933/91/5.
  • b
    Passing off or causing enabling or assisting others to pass off grinding stones used for the purpose of washing terrazzo floors inscribed with the trade mark “Super Rocket” not being of the plaintiff’s manufacture, merchandise as and for the goods of the plaintiff
  • c
    Importing, selling or offering for sale or supplying grinding stones used for the purpose of washing terrazzo floors or any other product under the trade mark “Super Rocket” as to be calculated to lead to the belief that grinding stone not of the plaintiff’s manufacture or merchandise are the products of the plaintiff.”

Then an ex-parte order was prayed for which included an injunction restraining the defendant from manufacturing, selling, offering for sale, inviting offers to acquire or distribution for the purpose of sale grinding stones used for the purpose of washing terrazzo floors inscribed with the Trade Mark “Super Rocket” but not being of the plaintiff’s manufacture or merchandise. This ex parte application was granted. Concurrently filed with the ex-parte application was an application on notice praying for an interlocutory injunction to, restrain the defendant from selling grinding stones branded as “Super Rocket” which was imported or about to be imported by the defendant. Reacting to both the ex parte order of injunction and pending motion on notice for injunction the defendant filed an application to discharge the ex parte order and to oppose the motion on notice. The trial Judge decided to hear the two applications together and in his ruling decided:-

  • 1
    that the plaintiff was not entitled to sue for infringement of a trade mark which had not been registered and mere acceptance by Register of Trade Marks of the applicant’s application has not amounted to registration
  • 2
    the defendant cannot be held liable for passing off because it ordered and imported goods as an agent for disclosed principals and therefore the court would not grant an application for injunction and a suit for passing off could not be sustained.
  • 3
    as the claim for infringement was struck out of the entire suit stood struck out.

    • Against this ruling an appeal was unsuccessfully lodged to the Court of Appeal

    Issues

    • 1
      Whether the plaintiff/appellant did not establish that there was a...
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