⦿ CASE SUMMARY OF:
F. O. Ajibowo and Co. Ltd v. Western textiles Mills Ltd (1976) – SC
by NSA PaulPipAr
⦿ TAG(S)
– Design;
⦿ PARTIES
APPELLANT
F.O. Ajibowo and Co. Ltd
v.
RESPONDENT
Western Textiles Mills Ltd.
⦿ CITATION
(1976) 7 S.C (REPRINT) 58;
⦿ COURT
Supreme Court
⦿ LEAD JUDGEMENT DELIVERED BY:
A. Fatayi-williams, J.S.C.
⦿ APPEARANCES
* FOR THE APPELLANT
– Chief O. Awolowo.
* FOR THE RESPONDENT
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⦿ FACT (as relating to the issues)
⦿ ISSUE(S)
1. Whether there was a prior publication of the design?
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: ALLOWED]
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
RULING:
i. In the case in hand, there is no doubt that the disclosure was made to the Plaintiffs/Respondent in circumstances from which an obligation to secretary can be inferred. Moreover, it is clear that the Plaintiffs/Respondent also have an interest in the manufacture of the particular design for the Defendants/appellants. For all these reasons, we are of the view that there was no publication to them. Not only that, we think that the facts of the case in hand, where the originators of the design wanted the textiles to be “supplied to our company and our company only”, are distinguishable from those of Winfield & Sons v. Snow Brothers (1891) R.P.C. 15 because the present case implies a confidential order bearing the new textile design to be made by the Plaintiffs/Respondent, and not, as in the Winfield case, where the trial judge found, not only that the transaction was in the nature of commercial dealing, but also that no conditions were attached to the transaction.
⦿ REFERENCED
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
In Blank v. Footman, Pretty & Co. (1888) 5 R.P.C. 653, where Blank, the proprietor of a design, before registering it, showed it to one Hummel, a commission agent who had the sole right of selling Blanks goods in England, it was that Hummel, therefore, had an interest in the design and for that reason, the communication must be regarded as confidential and as such, it does not amount to publication.
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⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
* PROCEDURAL
* SUBSTANTIVE
The law is that the publication of an industrial design is confidential if the person to whom the disclosure is made is under an obligation as to secrecy or has himself an interest in the design. – Fatayi-williams, JSC. Ajibowo v. Textiles (1976)
This is why it is important that, in a case where the newness of such a design is disputed, the design claimed to be new and the old design should be put side by side to enable the court to compare and see whether they are basically the same or whether there are fundamental differences in the shape and pattern of the lines. – Fatayi-williams, JSC. Ajibowo v. Textiles (1976)
