CASE DIGEST - TRADEMARK: TRADEMARK REGISTRATION; INFRINGEMENT; HOW IS A TRADEMARK INFRINGMENT DETERMINED?

INTERNATIONAL TOBACCO (NIG.) LTD. & ORS. v. OLOLADE OGUNNIYI; RONKE OGUNNIYI; JOHANN WILHELM VON. EICKEN GMBH - (Interested Party) v. BRITISH AMERICAN TOBACCO (NIG.) LTD. & ANOR.

SUPREME COURT OF NIGERIA

(KEKERE-EKUN; GARBA; OGUNWUMlJU; SAULAWA; JAURO, JJ.SC)

Background Facts

British American Tobacco and Benson & Hedges (Respondents') case at the Federal High Court (trial court) was that the registered trademarks No.60722 "Benson & Hedges" (gold colour label mark) and No. 56629; "Benson & Hedges" (Tum to Gold Slogan) were clearly registered specifically with relation to the colour gold as part and the component of the trademarks to which the Respondents, as proprietors, are given the right to exclusive use and protection against unauthorized infringement under the provisions of section 5(1) and (2) of the Trade Marks Act. There was no dispute at the trial court that the Respondents' trademarks No. 60722 and No. 56629, in particular, were registered in relation to and specifically with/in respect of the colour gold in addition to and as part of any component of the
brand name "Benson & Hedges", as prescribed and envisaged by the provisions of section 16( I) of the Act.

The trial court entered judgment in favour of the Respondents for the infringement of their trademark of the Gold Specification Pack of "Benson and Hedges" cigarettes by International Tobacco (Nig.) Ltd. Ololade Ogunniyi; Ronke Ogunniyi; Johann Wilhelm Von. Eicken Gmbh (the Appellants), who were the distributors of the "Tradition" brand of cigarettes manufactured by the interested Appellants. Aggrieved by the decision of the trial court, the Appellant appealed to the Court
of Appeal (lower court) which affirmed the decision of the trial court.