Resemblance Of Goods In Trademarks Infringement

 

Meaning of Trademark 

Written by Lkite Raphael

A Trademark may be defined as a mark or combination of marks used to individualize the goods or services offered by a business and distinguish them from those offered by other businesses. It may take the form of a name, signature, logo, word, letter, device, numeral or a combination of these.

Thus, the registration of trademarks gives the owner, the rights to use, sell and/or license the trademark to the exclusion of all others.

In determining the infringement of trademark, the identicality of the goods and descriptions of the same owned by different proprietor is a prerequisite element to consider, unless the court is of the opinion that such resemblance, in special circumstances or honest concurrent use won't cause confusion or deceit as to their identity.

Area Of Law: Intellectual Property Law

Statutes

Section 13(1) of the Trademarks Act

Subject to the provisions of subsection (2) of this section, no trade mark shall be registered in respect of any trade marks goods or description of goods that is identical with a trade not to be mark belonging to a different proprietor and already on the register in respect of the same goods or description of goods, or that so nearly resembles such a trade mark as to be likely to deceive or cause confusion.

Decided Cases

Fan Milk International A/S v. Mandarin Oriental Services BV and The Registrar of Trademarks 

FHC/ABJ/CS/792/2020

Fact:

The Appellant produces and sells frozen dairy products, juice, and juice drinks while the 1st Respondent, Mandarin Hotel Group which operates and manages over 30 luxurious hotels globally and premised it's proposed trademark registration on the fact that that it is registered in different continents around the world including Africa, Asia, Europe and the Middle East and so it intended to register same in Nigeria.

The Appellant's claim is that it is the owner and proprietor in Nigeria of the trademarks “FAN & Device and that the Respondent's proposed trademark, "FAN Device" is similar to the Appellant's registered trademarks “FAN & Device".

Decision:

The court held that both trademarks were not identical or likely to deceive or cause confusion as to be considered oppressive. The court further stated that the words ‘'FanMilk'' boldly written under the blades of the Appellant's trademark sets it asides and differentiates it from the 1st Respondent's proposed trademark. 

The court also stated that the Appellant's trademarks have been around for a long period of time and that people are used to what it looks like, particularly with the boldly inscribed Fan and FanMilk and as such, cannot be confused with any other Fan device without these words.

Similar Cases:

• Ferodo Limited & Anor v. Ibeto Industries Limited
• Alban Pharmacy Ltd. V. Sterling Products International Inc.
• International Tobacco (Nig) Ltd v. BAT (Nig) Ltd2 and Tropical General Investments (Nigeria) Limited and Escola De Nataco E Ginastica Bioswin Ltd