ELEKTROTECHNISCHE FABRIK SCHMIDT VS BATERIA SLANY NARODNI PODNIC

Legalpedia Citation: (1972) Legalpedia (SC) 18191

In the Supreme Court of Nigeria

Fri Mar 3, 1972

Suit Number: SC.241/69

CORAM

COKER,JUSTICE, SUPREME COURT

UDOMA,JUSTICE, SUPREME COURT

FATAYI-WILLIAMS,

PARTIES

ELEKTROTECHNISCHE FABRIK SCHMIDT & CO. Otherwise DAIMON-WERKE GMBA ) APPELLANTS

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The appellants and respondents were companies owned by same person, after World War II the respondents Company, nationalised by Switzerland. The appellants were registered proprietors of the trade mark DAIMON & DEVICE but the respondents company, which ceased to be part of the appellants company, obtained registration of the trade mark DAIMON.

HELD

The court held that the appeal of the appellants is hereby dismissed with costs.The appeal of the respondents is hereby allowed.

ISSUES

Whether the respondents had any right to register their trade mark in this country.

RATIONES DECIDENDI

PRINCIPLES OF ACQUIESCENCE IN CONCURRENT USER

“Acquiescence in the infringement on the part of the plaintiff is a complete defence, if it amounts to consent; but it can only be inferred where he is shown to have had knowledge of it. Even if it is shown that the plaintiff knows of the infringement, the court will not readily infer that he had assented to what is likely to be so detrimental to his property. It has been held that, where it is pleaded in answer to a motion to commit the defendant for the breach of an injunction restraining him from infringing, it must amount to a licence sufficient to create a new right in him.” COKER, JSC.

GROUNDS ON WHICH AN ORDER OF EXPURGATION COULD BE MADE

“The court may, on the application of any person aggrieved by the omission without sufficient cause of the name of any person or of any other particulars from the register, kept under this Ordinance or by any entry made without sufficient cause in any such register, or by any entry wrongfully remaining on the register, make such order for making, expunging or varying the entry as the court thinks fit, or the court may refuse the application and in either case may make such order with respect to the costs of the proceedings as the court thinks fit.” COKER, JSC.