HOLDENT INTERNATIONAL LIMITED v. PETERSVILIE NIGERIA LIMITED
(2013)LCN/6380(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of July, 2013
CA/L/858/11
RATIO
DUTY OF COURT: EVALUATION OF EVIDENCE
According, the evaluation of evidence entails justifying the attachment of value/quality to it by the court evaluating the evidence – See Oyewole v. Akande (2009) 15 NWLR (Pt.1163) 911, Olagunju v. Adesoye (2009) 9 NWLR (Pt.1146) 225, International Beer and Beverages Industries Ltd. and Anor v. Mutunci Company (Nig.) Ltd. (2012) 6 NWLR (Pt.1297) 487 at 518 – 519, Ibanga v. Usanga (1982) 5 SC 103, Nwankpu v. Ewulu (1995) 7 NWLR (Pt.407) 269, Olatunji v. Adisa (1995) 2 NWLR (Pt.376) 167, Sanusi v. Makinde (1994) 5 NWLR (Pt.343) 214, Odutola and Ors. v. Mabogunje and Ors. (2013) 7 NWLR (Pt.1354) 552. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
IBRAHIM MOHAMMAD MUSA SAULAWA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
Between
HOLDENT INTERNATIONAL LIMITED Appellant(s)
AND
PETERSVILIE NIGERIA LIMITED Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): Consequent upon the dismissal of an action for trade mark infringement brought by the appellant against the respondent at the Federal High Court of Justice sitting in Lagos State (the court below), on the ground that the appellant had not proved the case for an infringement of her trade mark, the appellant filed the appeal questioning the said judgment.
Expressed in summary form, case of the appellant was that her trade mark called Mamalemon was duly registered with the Registrar of Trade Mark in class c for the purpose of the manufacture and sale of detergent. It was the appellant’s case at the court below that the respondent infringed the trade mark by producing and marketing detergent under the unregistered trade name of ‘Mana liquid Soap’. The appellant asserted that the two trade names sound alike and confuse customers to desert her product for the respondent’s product in the belief that they are patronising her Mamalemon products.
The respondent asserted on the other hand that there confusion is no between ‘Mamalemon’ and ‘Mana Liquid Soap’ both in sound and in sight and/or that any potential customer/buyer hearing and seeing the appellant’s trade mark of ‘Mama Lemon’ and the respondents unregistered trade name of ‘Mana Liquid Soap’ will spot the difference between the two and would not be misled in his choice of what to buy.
The court below resolved in its judgment that the appellant was entitled to a declaration that she is the rightful/legal owner/proprietor/user of Mamalemon trademark. The court below further resolved that the respondent did not infringe the appellant’s trade mark with the production and sale of its Mana Liquid Soap product and dismissed the appellant’s claim of infringement of her trade mark by the respondent.
Not unexpectedly, the appellant was aggrieved by the decision of the court below that the respondent had not infringed her trade mark and filed a notice of appeal with four grounds of appeal on 09.06.11 challenging it. In a brief of argument filed on 06.10.11, the appellant developed two issues for determination in these words-
“1. Whether the judgment of the court below satisfies the laid down guidelines to be followed in the writing of judgments, and if not, this is a proper case requiring this Honourable Court to intervene to review the entire case?
2. Whether the case put forward by the Appellant was properly considered or considered of all in the judgment of the court below, and if the answer is in the negative, whether the said judgment should be set
aside for lack of fair hearing.”
The appellant pointed out in the course of arguing the first issue that the court below merely summarised the evidence of the parties before it without evaluating the evidence to ascribe probative value to it in the imaginary civil scale of justice, therefore the judgment it arrived at in favour of the respondent was not a dispassionate demonstration of the assessment of the evidence before it and should be set aside and this Court should evaluate the evidence, which properly evaluated entitles the appellant to the judgment that the respondent infringed her trade mark of Mamalemon vide the cases of Mogaji and Ors v. Odofiin and Ors. (1978) 4 S.C. 91 at 93, Ogba v. Onwuzo (2005) 14 NWLR (pt.945) 331 at 334-335, Okulate v. Awosanya (2000) 1 S.C. 107 or (2000) 2 NWLR (pt.246) 530, Uzuda and Ors. v. Ebigah and Ors. (2009) 7 S.C. 21 at 23, Anyanwu and Ors. v. Uzowuaka and Ors. (2009) 6-7 S.C. (pt.11) 44 at 54, O.S.I.E.C. and Ors. v. A.C. and Ors. (2010) 12 S.C. (pt.iv) 108 at 162 – 164, Ndukwe v. State (2009) 2-3 S.C. (pt.11) 35 at 77.
The appellant complained on the second issue that the failure of the court below to properly and fully consider her case in its judgment violated her right to fair hearing vide Opuiyo v. Omori Wari (2007) 6 S.C. (pt.1) 35, Uzuda v. Ebigah (supra) at 42, Samba Pet Ltd. and Anor, v. U.B.A. Plc and ors. (2010) 5-7 S.C. (pt.11) 22 at 33-35, Amadi v. Thomas Alplin and Co. Ltd. (1972) 4 S.C. (Reprint) 2o5, Adigun v. Attorney-General, Oyo State (1987) 1 NWLR (pt.53) 678, Nwokoro v. Onuma (1990) 5 S.C. (pt.53) 678, Nwokoro v. Onuma (1990) 5 S.C. (pt.1) 124. The appellant ended her submissions by urging the Court to allow the appeal and find in her favour that her trade mark was infringed by the respondent.
The respondent’s brief of argument dated and filed on 07.07.11 formulated these issues for determination:-
“1. Whether the judgment of the court below satisfies the laid down guidelines to be followed in the writing of judgments, and if not, whether this is a proper case requiring this Honourable court to intervene to review the entire case.
2. whether the case put forward by the appellant was properly considered at all in the judgment of the court below, and if the answer is in the negative, whether the said judgment should be set aside for lock of fair hearing?
3. Whether the appellant having failed to pay the cost awarded against it at the lower court is entitled to be heard before this honourable court.”
It is the contention of the respondent that the style of writing judgment varies among judges as the only invariable requirement of a good judgment is that it must encompass the claim or relief sought, summary and assessment of the evidence together with counsel’s submissions and the drawing of right conclusions findings on the admissible evidence before the court, which the court below accomplished by making a definite finding on the only issue in dispute between the parties that the mark ‘Mama Liquid Soap’ used by the respondent to market its product did not infringe ‘Mama Lemon’ trade mark of the appellant upon which it righty found against the appellant vide Okulate v. Awosanya (2000) 2 NWLR (pt.246) 530, Onuoha v. State (1988) 2 NSCC 175, Usibaifo v. Usibaifo (2005) 4 MJSC 82, Agbanelo v. UBN (2000) 7 NWLR (pt.666) 534.
Consequently, the respondent urged that assuming without conceding that the court below made a mistake in the evaluation of evidence the error was not substantial and did not occasion a miscarriage of justice to justify this Court to intervene with a view to review the entire case to arrive at another judgment vide Fatunbi v. Olanloye (2004) 51, A.G, Leventis v. Akpu (2007) 9 MJSC 134, Ezeoke v. Nwagbo (1988) 1 NSCC 414.
It was argued on the second issue that the court below heard the parties on the processes filed together with their respective evidence and found as a fact that the respondent did not infringe the appellant’s trade mark of Mamalemon, therefore the court below complied with the principle of fair hearing and its judgment on the merits should not be set aside vide Owodunni v. Registered Trustees of Celestial Church of Christ and Ors. (2000) 6 SCNJ 299 at 426-421, Udeh v. Okoli (2009) CLR 3, A.G. Leventis v. Akpu (supra), Victino Odds Ltd. V. Ojo (2010) CLR 12; and that the appellant having failed to pay the costs awarded against her at the court below is not entitled to be heard and the appeal be dismissed.
The issues formulated by the appellant are appropriate for the resolution of the appeal and, I hereby adopt them for the discourse.
The nine page judgment of the court below is on pages 75-83 of the record of appear (the record). Pages 75-82 therefore contain the summary of the case including the submissions of counsel. While the penultimate page 82 thereof to Page 83 of the record intended to be on evaluation of evidence concluded the judgment this way-
“On the evidence the Plaintiff registered a trade mark with the Registrar Trade Mark MAMALEMON (one word) in Class 3 in respect of Cosmetics, Soaps, Perfumery and Essential Oils Hair Lotions.
The Plaintiff was issued o Certificate seated under the hand of the Registrar of Trade Marks on the 2nd of February, 2010, Exhibit A.
The Plaintiff is entitled to rightful the declaration that it is the and legal owner proprietor and user of ….MAMALEMON (one word) Trademark covered by certificate RTM 82795 in class 3 in respect of the goods mentioned on the Certificate.
The other issue for determination is whether the Defendant is infringing on the plaintiff’s trade mark with the production and sale of its product Mana Liquid Soap.
Looking at the evidence Exhibits B and C I am persuaded by the sworn Statement of the Defendants witness that there is no infringement whatsoever of the plaintiff’s registered trade mark MAMALEMON, and I so find.
The Plaintiff is not entitled to any or the other Declarations or reliefs it seeks against the Defendant and I so find.” (My emphasis).
As stated in the case of Oyewole v. Akande (2009) 15 NWLR (pt.1163) 119 at 147, a trial court must have regard to the following guidelines in the course of evaluation of evidence in its judgment-
(i) admissibility of the evidence;
(ii) relevancy of the evidence;
(iii) credibility of the evidence;
(iv) conclusiveness of the evidence; and
(v) probability of the evidence of one party weighing more than that of the other.
see also the case of C.P.C. v. Yuguda (2013) 7 NWLR (pt.1354) and 458 at 456 to the effect that the attributes of a good and valid judgment must comprise the introduction of the issues between the parties;
summary of their respective cases; resolution of issues of fact and law; and the court’s decision and reasons for arriving at the decision which must demonstrate clear, full and dispassionate appraisal of all the relevant issues properly raised from the facts and the law before the court.
In other words, it is after satisfying itself that the guidelines (supra) have been complied with that the trial court would then apply the law to the situation presented in the case before it by weighing both versions of the dispute in the imaginary scale of civil justice to arrive at a conclusion one way or the other on which side of the dispute has more weight which is the evaluation and perception of evidence. See Akibu v. Opaleye (1974) 11 S.C. 189, Mogaji v. Odofin (1978) 4 S.C. 91; Ukpo and Ors. v. Imoke and Ors. (2009) 1 NWLR (pt.1121) 90 at 167, Osuagwu v. The State (2013) 5 NWLR (pt.1347) 360 at 390 and Balogun v. U.B.A. Ltd. (1992) 6 NWLR (pt.247) 336.
According, the evaluation of evidence entails justifying the attachment of value/quality to it by the court evaluating the evidence – See Oyewole v. Akande (2009) 15 NWLR (Pt.1163) 911, Olagunju v. Adesoye (2009) 9 NWLR (Pt.1146) 225, International Beer and Beverages Industries Ltd. and Anor v. Mutunci Company (Nig.) Ltd. (2012) 6 NWLR (Pt.1297) 487 at 518 – 519, Ibanga v. Usanga (1982) 5 SC 103, Nwankpu v. Ewulu (1995) 7 NWLR (Pt.407) 269, Olatunji v. Adisa (1995) 2 NWLR (Pt.376) 167, Sanusi v. Makinde (1994) 5 NWLR (Pt.343) 214, Odutola and Ors. v. Mabogunje and Ors. (2013) 7 NWLR (Pt.1354) 552.
In the instant case, the court below summarised the evidence led in the case in its judgment (supra) by paraphrasing the evidence of the witnesses but it did not evaluate the evidence in the sense that it did not express the reason(s) it preferred the evidence of the respondent. There were therefore no reasons given why and how the court below preferred the evidence of the respondent. Nor did the court below express the reason(s) it rejected the evidence of the appellant. At the end of the exercise the court below merely held that it was persuaded by the evidence of the respondent without disclosing the ground or basis for the persuasion in its judgment.
Further, the court below did not take into account the oral evidence of the appellant in the imaginary scale of justice when it decided that the evidence of the respondent and Exhibits B and C established that the respondent did not infringe the trade mark of the appellant, which made its decision unsatisfactory and impeachable. See Savannah Bank of Nigeria PLC v. Central Bank of Nigeria and ors (2009) 6 NWLR (pt. 1137) 237 at 298 – 299, Odutola and Ors. v. Mabogunje and ors (supra) at 553, and Mogagi v. Odofin (supra).
Accordingly, I agree with the appellant on the two issues (supra) that the court below denied her fair hearing by its failure to evaluate the evidence of her sole witness in respect of the case while considering the respondent’s case.
In as much as a trial court is free to adopt any style in writing a judgment, the basic requirements of evaluation and perception of the evidence after its summary must be clearly demonstrated in the judgment by it – See Borishade v. F.R.N. (2012) 18 NWLR (pt.1332) 347 at 410- 411. Because a good judgment must contain how the evidence was evaluated and appraised and the findings of facts and conclusion reached on them by the trial court must be visible and explicit in the judgment. The parsimonious and/or meager judgment of the Court below does not therefore answer to a good judgment.
It is trite that where a trial court fails to properly evaluate the evidence adduced by the parties on relevant issues as in the before it as in the instant case, an appellate court can evaluate such evidence if it does not involve the credibility of witnesses and is confined to the printed record and documentary (as in this case) evidence upon which an appellate court can make appropriate findings on the said evidence. See Onyekwelu v. Elf Petroleum (Nig) Ltd. (2009) 5 NWLR (pt.133) 181 at 2022 following Ogunleye v. Oni (1990) 2 NWLR (pt.135) 745, Imah v. Okogbe (1993) 9 NWLR (pt.316) 159, Olufosoye and Olorunfemi (1989) 1 NWLR (pt.95) 26.
In my considered view, the unevaluated evidence of the appellant does not appear to be on the credibility and demeanours of witnesses. The case also principally revolved around documentary evidence, Exhibits, A, B. and C. Exhibit A is the certificate of registration of Mamalemon trade mark. Exhibit B is a plastic bottle or object bearing Mamalemon trade mark, while Exhibit C is another plastic bottle or object bearing the inscription of ‘Mana Liquid Soap’. Section 258(1) of the Evidence Act, 2011, defines “document,, thus-
“document” includes .
(a) books, maps, plans, graphs, drawings, photographs, and also includes any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of these means, intended to be used or which may be used for the purpose of recording that matter;
(b) any disc tape, sound track or other device in which sounds or other data (not being visual images) ore
embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it, and
(c) any film, negative, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it; and
(d) any device by means of which information is recorded, stored or retrievable including computer output.” (My emphasis).
Exhibits B and C, with the inscriptions on them are, accordingly, documents within the meaning of the underlined portion of Section 258(1) (a) of the Evidence Act (supra). The Court is, therefore, in a good position as the court below to evaluate the inscription on Exhibits B and C as documents alongside the oral evidence for the parties which is not been based on the credibility or demeanour of the witnesses vide Section 15 of the court of Appeal Act, 2004, read with the cases of Salzgitter Stahl GMBH v. Tunji Dosunmu Industries Ltd. (2010) 11 NWLR (pt.1206) 589 at 627, Gonzee Nig. Ltd. v. Nigerian Educational Research and Development council and ors. (2005) 13 NWLR (pt.943).
The sole witness for the appellant, one Mr. Kalu Ariogu, testified in his written statement on oath on pages 16-20 of the record inter alia that-
“e. That the Plaintiff has been dealing on MAMA LEMON products in Nigeria as aforesaid and the Defendant not is the proprietors or distributors for the manufacturer of the products.
f. That the Plaintiffs turnover in Nigeria in terms of sales turnover in respect of the said MAMA LEMON products has been tremendous because of the product’s substantial reputation as product of high quality and the Plaintiff shall at the trial of this suit adduce evidence to buttress the level of their turnover.
g. That the plaintiff by reason of the foregoing the Plaintiffs said MAMA LEMON products have become
famous and associated with the plaintiff.
h. That as the Plaintiff said MAMA LEMON products soared in sales, plaintiff began to receive reports from its distributors in and around Lagos State that the Nigerian market has been flooded with large supplies and sales of certain MANA LIQUID SOAP products which products infringe the plaintiff’s trademark. Attached and marked Exhibit c is a photograph of the Defendant infringing products.
i. That the Plaintiff upon investigation, the plaintiff found the existence of the infringing products on sale at the Defendant offices at No. 7, Egbeyemi Street, Off Ijede Road, Ikorodu, Lagos.
j. That the Defendant and its agents jointty and severally are infringing the trademark and are passing off Plaintiff’s trademark under which they are selling their infringing products.
k. That the Defendant MANA LIQUID SOAP and Plaintiff’s MAMA LEMON LIQUID SOAP are identical, sound alike and have the same word “MAMA” and “MANA” but for the replacement of “N” with “M” in MANA and both goods and products are in the same class 3 for soaps hence incontrovertibly capable of confusing and misleading the buying public.
l. That the Plaintiff caused o survey to be conducted to determine the performance of the Plaintiff’s MAMA LEMON products in the market since the acts of infringement and passing off of some by the Defendant commenced and found out that the Defendant have virtually destroyed the Plaintiffs business in that there has been drastic fall in the volume of the sales now recorded by the Plaintiff with the result that plaintiffs turnover has dropped.
M. That the Defendant and its agents jointly and severally have caused plaintiff loss of significant portion of its market share of sales and that the Defendant continued sale of the infringing products have unfairly and prejudicially destroyed the Plaintiff’s market, goodwill and reputation in the aforesaid plaintiff’s product.
N. That consequent upon the Defendant various acts of imitation and copying of the Plaintiffs trademark the Plaintiffs trademark the plaintiffs numerous customers have been led to believe that the Defendant infringing products are those of the plaintiff.
O. That the plaintiffs numerous customers who purchased the Defendant infringing products acted under the impression that they were buying the goods of the Plaintiff.
P. That the Defendant act of infringing the plaintiff’s trademark as well as passing off the plaintiffs goods, have seriously and adversely affected the plaintiffs business as they now record very low volume of sales and have suffered heavy financial loss as a consequence.
Q. That by reason of the foregoing facts, that unless the Defendant and its agents are perpetually restrained and ordered to pay damages they will ruin the Plaintiffs business by reason of the defendant passing off of act of the plaintiff’s products as well as continued infringement of the plaintiffs trademark.”
The sole witness of the appellant stated in oral evidence under cross-examination on pages 39-40 of the record that the appellant received the certificate of registration of her trademark titled “Mamalemon” in June, 2006, and started the manufacture and sale of the product (cosmetics, soaps, perfumery, essential oils and hair lotions) as stated in the certificate of Registration Exhibit ‘A’ in the same month and year from which she received good patronage from customers until the high turnover of the sale of her Mamalemon product was disrupted by the introduction in the market of Mana liquid soap product by the respondent which flooded the market in 2010 and confused customers who could not distinguish the similarity between the word “Mama” and “Mana” therefore the respondent infringed her trademark of “Mamalemon”.
The respondent’s sole witness, a Mrs. Esther Akinyele-Peter’s written statement on oath is on pages 31-35 of the record. Paragraphs 2-29 thereof deposed that-
“2.) That the Defendant’s business managed to effectively take off sometimes in year 2009 after obtaining its acknowledgement and acceptance form from the Registrar of Trade marks in October 2008.
3) That the defendant is a company duly incorporated under the laws of the Federal Republic of Nigeria having it principal place of business of No. 7, Egbeyemi Street, Off Ijede Road, Ikorodu Logos.
4.) That the defendant is a wholly owned Nigerian small company that is doing legitimate business and the owner of the Trademark MANA COSMETICS IN CLASS 3 & producers of MANA LIQUID SOAP and other range of cosmetics products.
5.) That the defendant products did not infringe the plaintiff’s trademark nor pass off the plaintiffs product by adopting, mimicking or imitating the plaintiffs trademark hence, the defendant is not selling an infringing product.
6.) That the plaintiff claimed to have registered its trademark mamalemon since 12th May 2006 but exhibited a certificate sealed at the direction of the registrar of trademarks on 2nd February, 2010 which certificate is marked “not for use in legal proceeding”.
7. That the defendant’s product did not in any way infringe on the plaintiffs trademark hence, it is not selling an infringing product.
8. That the defendant’s product MANA LIQUID SOAP from inception was genuinely conceptualized as the name itself was imported from far away New Zealand in a quest for uniqueness.
9. That the defendant submitted to the trade mark registrar for registration MANA COSMETICS IN CLASS 3 which has under it several range of products including MANA LIQUID SOAP which wields to it in terms of meaning, authority, influence, power, might, importance and eminence which makes it unique amongst others.
10. That since the commencement of its business in year 2009, the business environment has been favourable to the defendant while engaging in its legitimate trade and its product is now more popular in the market than mamalemon hence this unhealthy rivalry which lead to the institution of this suit.
11. That the defendant’s product MANA LIQUID SOAP is in no way similar to the plaintiff’s product MAMALEMON.
12. That the plaintiff’s product is not MAMA LEMON LIQUID SOAP as claimed in its statement of claim but simply MAMALEMON.
13. That the plaintiffs product as registered in its certificate already before this Honourable Court is MAMALEMON. The MAMALEMON is one word and it is not separable.
14. The plaintiffs mamalemon if at all it is to be given a full name as opposed to what was registered should be MAMALEMON DISHWASHING LIQUID as boldly written on the mamalemon’s container.
15. That the buying public could not in any way be mislead into buying MANA LIQUID SOAP as MAMALEMON because they are different and distinct in features, name, sound and pronounciation.
16. That the two products are fundamentally different in all ramifications viz: Naming basis and concept,content colouration and fragrance, bottle shape and label design, I capping colour and shape, tamper proof colour and design and outer carton design and colouration. The only similarity is that both the plaintiff and the defendant produce for the same market.
17. That the product consumers address the defendant’s liquid soap as “Mana Liquid soap” white the plaintiff’s product is known in the market place as MamaLemon irrespective of the fact that it is also a liquid soap.
18. That the design concept is such that it did not conflict with MamaLemon. While Mana is written on with royal blue coercive lettering with yellow trimming on a pink background, MamaLemon is written with ordinary blue and red on a lemon background.
A feature considered sufficient enough to distinguish the two products from each other.
19. That while the liquid content of Mamalemon is green, the liquid content of Mana liquid soap is pink.
20. That in terms of fragrance, white Mama Lemon simply uses Lemon fragrance like all other manufacturers of Liquid soap in Nigeria, Mana Liquid soap has fragrance that is simply different not only from MamaLemon but from all other liquid soap in Nigeria.
21. That while Mana liquid soap uses off-the shelf non-customized plastic bottle with perfectly round body with short mouth, Mama Lemon is packaged in customized, not perfectly round plastic bottle with fairly long mouth. In line with industry practices, common liquid soap packages are 200m1, 250ml 400m1, 500m1, 500ml and 7 liter. For each of these packaging sizes, Mamalemon bottles are taller than Mana liquid soap thus eliminating all chances of confusion.
22. That the label of Mana liquid soap is mainly pink. It is not a coincidence that it is pink. The reason for making the label pink is underscored by the desire to identify with Nigerian women who are usually the population that shop for liquid soap.
23. That the label of MamaLemon is predominantly lemon colour without o trace of pink and this implies that physically, no customer con mistake the two.
24. That in Mana liquid soap, the PINK label covers the entire body of the plastic white the lemon label in MamaLemon only covers a part of it.
25. That the tamper proof of Manaliquid soap is imprinted with Mana and with white colour while that of MamaLemon is imprinted with blue colour.
26. That the outer carton designs of Mana liquid soap is blue and yellow writing with white background white the outer carton design of MamaLemon has blue and red writing with lemon background.
27. That it is evidently clear that Mana liquid soap is fundamentally and obviously different MamaLemon by from pronunciation, sound, spelling, meaning, intent, design and operation.
28. That the defendant’s product did not in any way infringe or pass off on that of the plaintiff and it is not liable to be restrained or pay any damages to the plaintiff.
29. That the Plaintiff by this suit intends to undermine a wholly owned Nigerian small company that is doing legitimate business in order to create and enjoy a monopolistic liquid soap market for itself in Nigeria.”
The respondent’s sole witness answered under cross-examination on page 41 of the record that “Mana” is the name used for all its products; that the respondent did not produce its product upon seeing “Mamalemon” product of the appellant; that “Mana” is a foreign name from New Zealand; and that she received an acknowledgement of the application for registration of its trade name of “Mana” from the Registrar of Trade Marks.
Exhibit A, the certificate of registration of the appellant’s trade mark has the compound name “Mamalemon” registered in class 3 under No. 822735 as at 12.05.2006, but issued on 02-02-2010, in respect of cosmetics, soaps, perfumery essential oils, and Hair lotions. That the appellant has at all material times from June, 2006, manufactured and marketed her Mamalemon product with high turnover patronage from customers as stated in the unchallenged evidence of her sole witness is not in doubt and is hereby found established. That the respondent markets her product of detergent in the unregistered name of “Mana liquid soap” as stated by the unchallenged evidence of the respondent’s sold witness is also not in dispute and is hereby found established.
The essence of registration of trade mark is to prevent others from using the registered mark of another and the registration if valid gives to that person exclusive right to use the trade mark in relation to those goods covered by the registration as evidence of title to the trade mark.
The respondent’s evidence that the configuration and flourish on the respondent’s Mana liquid product differ from those on the appellant’s product Mamalemon whilst true and I so find, cannot, in my view, be the basis for deciding whether a trade mark has been infringed. It is the trade mark as registered vis-a-vis the alleged offending or invading mark that are considered. Here it would be the appellant’s registered Mamalemon trade mark as a compound name in Exhibit A that will be considered vis-a-vis the mark “Mana liquid soap” used by the respondent to determine whether the latter infringes the former.
The matter is better put in the case of Ferodo Ltd. and Anor. v. Ibeto Industries Ltd. (2004) 5 NWLR (pt.866) 317 at 350 and 351 per the lead judgment of Musdapher, J.S.C, (later C.J.N.) thus-
“In deciding whether two marks are confusingly similar, the marks alone must be considered, divorced from associated features or get up and the like. See Lever Bros, Ltd. v. Sunniwhite Products Ltd. (1949) 66 RPC 84… The resemblance giving rise to infringement must lie in the basic idea of the mark, in this case “FERODO” It is the basic idea of the trade mark as evidenced by the advertisement in the bill boards and the evidence of witnesses at the trial who called the product simply “FERODO”
…When a word is used to denote a product and when the other features contained are not distinctive, they are merely decorative of the trade mark and not part of it…
In summary I agree with the court below that the only mark registered for the first appellant is the word “FERODO” and the colouring outlay and the geometric designs are merely decorative and do not form part of the trade mark.” (my emphasis.)
See also Smithkline Beecham Plc v. Farmex Limited (2010) NWLR (pt.1175) 285 at 302 (para H).
It is imperative to note that the two human senses of hearing and seeing are employed to ascertain whether the two marks are identical or too striking in similarity to confuse or mislead an average person confronted with the alleged offending trade mark. See Alban pharmacy Ltd. v. sterling products International Inc. (1968) All NLR 300 on page 304 as follows:-
‘This is sometimes stated that the ear must be considered as well as the eye; and this is generally shown in the confusion which may arise in the course of a telephone conversation and this is a point that must be borne in mind.”
Finally in Ferodo Ltd. (supra) on pages 374-375 it was held inter alia on pages 374-375 that-
“In the exercise of comparison, it is wrong to take trade the two marks side by side to determine whether they are identical or some close resemblance exists within the provision of Section 13 of the Act. The issue is whether the person who sees or has seen the proposed trade mark will confuse it with the existing trade mark, as to create confusion and be deceived that the proposed trade mark is the same as the existing one. In the Matter of Application for Registration of a Trade Mark by Sandow Ltd. (1914) 31 RPC 196 of 205, Sargant, J., made the point:
‘The question is not whether if a person is looking at two trade marks side by side there would be a possibility of confusion; the question is whether the person who sees the proposed trade mark in the absence of the other trade mark, and in view only of his general recollection of what the nature of the other trade mark was, would be liable to be deceived and to think that the trade mark before him is the same as the other, of which he has a general recollection.”
One other way of conducting the exercise of comparison is by looking closely at the first syllable, being the word or part of the word which contains a vowel sound or a consonant acting as a vowel. For instance, there are two syllables in the word “win” and “dow”. The first syllables is much more important than any other one because the victim of the identical trade mark wilt first come in contact with the first syllable and take it as authentic or ‘golden’.
In my considered view, a person of average intelligence seeing and/or hearing the sound of the words “Mana Liquid Soap” cannot confuse them with the appellant’s trade mark of “Mamalemon” be calculated to deceive him that he is buying or patronising one and the same Mamalemon product.
The trade mark “Mamalemon” and the mark “Mana liquid soap” therefore appears to me not to sound and look alike to an incautious average person hearing it with his ears or seeing it with his eyes as to cause confusion or deceive the unwary person of average intelligence (whether literate or illiterate) patronising the Mana liquid product think it to be Mamalemon product consequently I find that on that there was no infringement of the appellant’s registered trade words of Mamalemon by the respondent’s use of the mark “Mana Liquid Soap” to market its product. Some instances of dissimilarity in words both visual and audio in respect of infringement of a trade mark are helpfully itemed in the book – Intellectual property Law in Nigeria (2003 Edition) by the learned writer, Folarin Shyllon, on page 214 where it is stated that the following marks were held not calculated to deceive or cause confusion both in sound and in sight thus- “Yiola” not similar to “Yaro” vide Savage v. Allen 13 N.L.R. 34; “Three Tigers,, was held not similar to ‘Three cats” vide the case of vide Kai Lt Battery Factory v. Registrar of Trade Marks (1963) 1 ALR (Comm) 135; “Three Tigers” “Chastoplast” was held similar to “Three cats” vide the case of kai (see up) “Elastoplast” vide smith and Nephew v. Chastity Pharmaceutical Chemists, unreported Appeal No.FHC/L/20/91.
I hold the view that the trade mark of “Mamalemon”, is not identical with or similar to and/or resembles the respondent’s “Mana Liquid soap” product as to be likely to deceive or cause confusion to an unwary person of average intelligence with general recollection patronising the respondent’s ub the bekuef ut us aooekkabt oridyct product. See Smithkline (supra) at 302 (paras. A-B), Alliance International Limited v. Saam Kolo International Enterprises Limited (2010) 13 NWLR (pt.1211) 270 at 301 (paras. C-D), Ferodo (supra).
The appeal accordingly fails and is hereby dismissed and judgment dismissing the appellant’s case at the court below is hereby entered with N30,000 costs to the respondent.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Having concurred with the reasoning and conclusion thereby reached in the judgment just delivered by my learned brother, Ikyegh, JCA, I cannot but come to the inevitable conclusion that this appeal is devoid of merits. Thus, the appeal is equally hereby dismissed by me. I uphold the judgment of the lower court dismissing the Appellant’s claim in suit No.FHC/L/CS/2010. I abide by the consequential order of costs awarded in favour of the Respondent.
FATIMA OMORO AKINBAMI, J.C.A.: I had the privilege of reading in advance the lead judgment, just delivered by my learned brother JOSEPH SHAGBAOR IKYEGH J.C.A. The appellant sued the Respondent for infringement of her trade mark. The court resolved that the respondent did not infringe,the appellant’s trade mark with the production and sale of Mana Liquid Soap product, and dismissed appellant’s claim for infringement of her trade mark.
Being dissatisfied,the appellant filed a notice of appeal challenging the decision of the learned trial judge. The appellant distilled two issues for determination in its brief of argument.
The Appellant pointed out in the brief of argument that the court below did not evaluate the evidence it placed before the court, and that the improper evaluation of evidence they adduced before the court, that they were denied fair hearing.
My learned brother dealt extensively with all the issues canvassed on behalf of the parties. I agree with his reasoning and conclusion therein. I have nothing to add.
I also refuse the appeal, it fails accordingly and is hereby dismissed. Judgment dismissing the appellant’s case is entered. I abide by the consequential orders.
Appearances
Mr. A. ObiekweFor Appellant
AND
Mr. A. Adebajo – AdetunjiFor Respondent
