The first Plaintiff is an English company and the second Plaintiff is its Nigerian associated company. On the 28/2/1994, the learned trial Judge in part of his judgment held as follows:-
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“There is no doubt in my mind that whether this Court finds that the Defendant marketed its products in Exhibit F or O it does not infringe the registered trade mark of the Plaintiffs' No. 38604 according to Exhibit D which is the certificate for use in Legal proceedings from the Registrar of Trade Marks. What the Plaintiffs registered as their trade mark is the word FERODO and in order to infringe the said trade mark, the Defendant must have taken the said word in its entirety or must have a substantial portion of it. IN KERLY'S LAWS OF TRADE MARKS AND TRADE NAMES 10th Edition pages 307 paragraph 15-02, it was stated that in an action for infringement of trade mark the Plaintiff complains that the Defendant has infringed his trade Mark by taking in its entirety, or by taking a substantial portion of it, or by colourably imitating it, and he relies on his statutory title to the exclusive use of the mark in question in goods of a specified kind. The right which is given by a valid registration is the right to exclude others from the use of the trade mark, in this case. "FERODO." It is therefore clear that the Defendant's use of its own name "UNION" or "UNION SUPA" is so far away from the Plaintiffs' registered trade mark by all standards that it can never be an infringement of "FERODO" since in an action for infringement it is the marks themselves that must be compared. I am of the firm view that the use of the Defendant's mark UNION does not in anyway resemble the Plaintiffs' registered mark FERODO as to likely to deceive or cause confusion as no device was registered along with the word "FERODO".
The learned trial Judge thus found there was no infringement of trade mark firstly because it was only FERODO that was registered as the Plaintiffs' trade mark and that UNION or UNION SUPA could not by any manner amount to an infringement of FERODO. The learned trial Judge further in his judgment found that the claim of passing off also failed because red, black and white colour combinations as claimed by the Plaintiffs was not distinctive to them and was common to the trade of brake linings and brake pads. He found that the Plaintiffs failed to prove their claims against the Defendant and he non-suited the Plaintiffs for the reason given in the judgment aforesaid.
The Plaintiffs felt unhappy with the decision of the trial Court and appealed to the Court of Appeal. At the hearing of the appeal at the Court of Appeal, the Plaintiffs abandoned the appeal as it related to the issue of passing off. The appeal was limited to the issue of infringement of the trade mark. The Court of Appeal affirmed the decision of the trial Court.
Appellants further appealed to the Supreme Court.
