Judgment
AMINA ADAMU AUGIE, J.S.C. (Delivering the Leading Judgment): On 11/2/2011, the Appellant made an application to the second Respondent for the registration of Air Amplifier, Air Multiplier and Bladeless Fan, as Trademarks. In the Acceptance Form dated 16/2/2011, the second Respondent specified that the said Trademarks “will in due course be advertised in the Trademark Journal”, and the Trademarks were published in the said Trademark Journal on 15/9/2012.
Meanwhile, on 7/12/2011, the first Respondent filed a Notice of Opposition to the said registration, and in response, the Appellant filed its Counter-Statements. However, while opposition proceedings were still pending, the Appellant, by an Originating Motion dated 14/2/2013, commenced Suit No. FHC/L/187/2013 at the Federal High Court, praying for the determination of the following questions: 1.
Whether having regard to the provisions of Section 4(1) & (2) and Sections 12(1) & (2) and Part 1, Second Schedule (items 31 & 43) of the Constitution; the provision of Section 44(5) & (6) of the Trademark Act Cap T 13 LFN 2004 is null and void for the reason of its inconsistency with the forgoing Provisions of the 1999 Constitution; and 2. If the answer to question 1, is in the affirmative, whether the PARIS Convention and the TRIPS Agreement are applicable in Nigeria by virtue of Section 44 of the Trademarks Act, Cap T 13, Laws of the Federation of Nigeria, 2004 and 3.
If the answer to question 2, is in the negative, whether the 1st Defendant is entitled to, pursuant to the TRIPS Agreement and the PARIS Convention oppose the Application of the Plaintiff to register Trademarks, which 2nd Defendant has accepted to register. AND if the answer to questions 2 & 3 above, are in the negative, the Plaintiff seeks: – 1. A Declaration that the 1st Defendant is not entitled to oppose the registration of the Trademarks; 1. Air Amplifier; 2. Air Multiplier; and 3. Bladeless Fan; and 2.
A Declaration that the Plaintiff is entitled to have the Trademarks; Air Amplifier, Air Multiplier, and Bladeless Fan, registered in its favour; and 3. An Order compelling the 2nd Defendant to register the Trademarks, Air Amplifier, Air Multiplier, and Bladeless Fan, in favour of the Plaintiff. 4. And for such order or orders as this Honourable Court deems fit to make.
