⦿ CASE SUMMARY OF:
Beecham Group Limited v. Essdee Food Products Nigeria Limited (1985) – CA
⦿ LITE HOLDING
Damages is the natural consequence of a plaintiff winning a suit..
⦿AREA OF LAW
Beecham Group Limited
Essdee Food Products Nigeria Limited
(1985) JELR 42523 (CA)
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY: .
* FOR THE APPELLANT
– Mr. Omotayo.
* FOR THE RESPONDENT
– Mr. Garrick.
⦿ FACT (as relating to the issues)
In a claim concerning infringement of a trade mark, the learned Chief Judge of the Federal High Court entered judgment in favour of Beecham Group Limited, against Essdee Food Products Nigeria Limited, the appellants, in this appeal.
The Respondents are the registered proprietors of a Trade Mark “LUCOZADE” No. 5452, Schedule (3), of Trade Marks Act, 1965 which are chemical substances used for medicine and pharmacy. They are also the proprietors of the trade mark “LUCOZADE” No. 5456, Schedule (3), of the same Act in respect of the substance used also as food or as ingredients in food.
Evidence was given before the trial court that the appellants had put in the market and offered for sale and sold a non-alcoholic beverage under a trade mark, called “GLUCOS-AID”. The respondents testified before the learned Chief Judge and asserted that the appellants have committed an infringement of their registered trade mark “LUCOZADE” by the use of a trade mark “GLUCOS-AID”.
Their claim before the trial court against the appellants was as follows: “1. An injunction restraining the Defendants their Servants and Agents from infringing the plaintiffs registered Trade Marks No. 5452 and 5456. 2. Delivery up on Oath for destruction of all goods cartons, wrappers, blocks, discs or stamps bearing any mark or set up that would be in breach of the injunction prayed for. 3. An account of the profits made by the Defendants by reason of their having carried out the said acts of infringement, or damages of N500,000.00 4. Costs. 5. Further or other relief”.
The learned trial Chief Judge after considering the evidence adduced entered judgment in favour of the respondents and awarded damages assessed at N5,000.00. In addition he restrained the appellants, their servants and agents from infringing the respondents’ registered trade marks No. 5452 and 5456. He also ordered for the destruction of all goods, cartons, wrappers, blocks, discs or stamps bearing any mark or set up that would be in breach of the injunction. It is against the said judgment the appellants have appealed to this court.
1. Whether from the evidence and pleadings the plaintiffs/respondents made out a case of infringement of the registered Trade Mark “Lucozade”?
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. In another Supreme Court’s decision, in the case of Alban Pharmacy Limited v. Sterling Products International Inc. (1968) 1 All NLR 300, Ademola C.J.N. held that the criterion is that the mark to be registered must not, when compared with what is already registered, deceive the public or cause confusion. In that case Ademola C.J.N. held also that the apprehensions of the appellants were well founded, for if the proposed Trade Mark “CASORINA” be registered the syllable “CAS” will no doubt form the essential part of the name of the medicine and was likely to cause confusion in the minds of the public. Furthermore the end of the “CASORINA” namely “RINA” in itself was not free from causing confusion with “RIA” in “CASTORIA”. These authorities confirm that the learned trial Chief Judge of the Federal High Court was quite right in his finding that ‘GLUCOSAID’ is calculated to confuse and deceive the public in its sound in their consideration of the Trade Mark “Lucozade”.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
It seems to me that the learned counsel for the appellants is unfamiliar with the old age practice of referring to limited liability companies in the plural form. Counsel’s attention is drawn to the Interpretation Act 1964 S.14(b) where it is provided that words in the singular include the plural and vice versa. Mr. Omotayo is safe to refer to limited liability Companies in the plural form. Such reference had been made by the learned trial Judge in the record of proceedings were the “defendants” were referred to in the plural form. – Mohammed, J.C.A. Beecham v. Essdee (1985)