CORAM
M. L. UWAIS CHIEF JUSTICE, NIGERIA
MICHAEL EKUNDAYO OGUNDARE JUSTICE, SUPREME COURT (Dissented)
U. MOHAMMED JUSTICE, SUPREME COURT
A. I. IGUH JUSTICE, SUPREME COURT
U. A. KALGO JUSTICE, SUPREME COURT
PARTIES
AYMAN ENTERPRISES LIMITED APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The appellant instituted action for passing-off in respect of an unregistered trade mark in the Federal High Court ?
HELD
The court that the Federal High Court had no jurisdiction to hear a case of passing – off in respect of an Unregistered Trade Mark.
ISSUES
Whether the Federal High Court has jurisdiction to entertain a claim for damages for “passing-off” of an unregistered Trade Mark
RATIONES DECIDENDI
THE APPROPRIATE COURT TO INSTITUTE ACTION FOR UNREGISTERED TRADE MARK
The jurisdiction of the Federal High Court to deal with actions on passing-off depends on the registration of trademarks as provided by section 3 of the Trade Marks Act, Cap. 436 and section 230 subsection (1) (f) of the 1979 Constitution (now section 251 (1) (f) of the 1999 Constitution. Where the trade mark is unregistered, as in the present case, then the cause of action for passing-off is in common law for tort and action can now be brought in a State High Court in view of the provisions of section 272 (1) of the 1999 Constitution- Uwais J.S.C
WHAT PLAINTIFF MUST PROVE TO ESTABLISH INFINGMENT
It is common ground that a plaintiff in an action for infringement must establish his title either as proprietor or as a registered user entitled to sue. He must then prove that the defendant has acted or threatens to act in such a way as to infringe the right conferred upon him by the registration of the trade mark under the Act. Per U.A. Kalgo J.S.C.
CASES CITED
Patkum Industries Ltd. V. Niger Shoes Manufacturing Company Ltd (1988) 5NWLR (pt. 93) 138; IML Air Chartering Nig. Ltd. V. IMNL International Messengers (Nig.) Ltd. 5 FRCR 113Timitimi V. Amabebe 12 WACA 374; Nyarko V. Akowuah 14 WACA 426) Okafor V. A.G. Anambra State (1991) 6 NWLR (Pt. 200) 659 at 680
STATUTES REFERRED TO
The Trade Marks Act, Cap. the 1979 Constitution the 1999 ConstitutionDecree No. 107 of 1993