CORAM
UTHMAN MOHAMMED , USTICE, SUPREME COURT
UWANI MUSA ABBA AJI
PARTIES
SUNDAY UZOKWE(Carrying on business under the name and style of Sunday-Innocent & Co.) APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The plaintiff instituted action for infringement of his design but led no evidence to show that the alleged infringing design was made from his design and not merely similar.
HELD
The court dismissed his appeal against the decision of the court of appeal to the effect that he did not prove the design was new.
ISSUES
1. Whether the burden of producing the designs and drawings from which Exhibit “5” which is the infringing product still lies with the plaintiff who has produced and tendered in court exhibit “1”, the plans and drawings from which Exhibit “2” was produced.
2. Whether the burden of proving the novelty of Exhibit “2” has not been discharged by appellant as provided by the Patents and Designs Law.
3. Did the Court of Appeal, Enugu properly apply the decisions in F.O. Ajibowo & Co. Ltd Vs. Western Textile Mills Ltd. (1996) (sic) (1976) 7 SC 97 in the appeal before it
4. Whether the findings made by the trial court were perverse that the Court of Appeal has to interfere with the said findings
RATIONES DECIDENDI
BURDEN ON THE PLAINTIFF TO PROVE INFRINGEMENT OF RIGHTS IN A REGISTERED DESIGN
Similarity in design has nothing to do with its novelty or distinctiveness. A claim for an infringement of rights in design cannot be sustained merely because the infringing product is similar to that of the plaintiff. More is required from the plaintiff bearing in mind the provisions of section 1 of the Act. – Ogwuegbu J.S.C.
CASES CITED
Ajibowo & Co. Ltd. v Western Textile Mills Ltd (1976) 7 S.C. 97
Metropolitan Industries (Nig.) Ltd. v. Industrial Applications (Nig.) Ltd (1973) 1 NMLR 274,
Amp. Incorporated v. Utilux Propriety Ltd. (1972) R.C.P. 103
Kodilinye v. Odu 2 WACA 331 and Jules v. Ajani (1980) 5-7 SC. 96 at 108.
Ajide v.Kelani (1985) 3 NWLR 248 at 265.
STATUTES REFERRED TO
The Patent and Designs Act