Judgment
AMINA ADAMU AUGIE, J.S.C. (Delivering the Leading Judgement): The Applicant, who is the first Respondent in the substantive Appeal, is praying the Court for leave to adduce additional evidence on appeal.
The Appellant/Respondent (hereafter referred to as the Respondent), was the plaintiff at the Federal High Court wherein it claimed inter alia: A Declaration that by virtue of a Certificate of Trademark Registration issued to the Plaintiff in Class 9 – and in Class 11 – respectively and particularly the registration since 1996, the Plaintiff is entitled to the exclusive use of the Trademark “LEXUS” in Classes 9 and 11.
The Applicant, as the first Defendant at the trial Court, denied the allegations, and also claimed that it is the registered proprietor and owner of the Trademark LEXUS in Nigeria with respect to vehicles and spare parts in Class 12 of the Fourth Schedule of the Trademarks Act.
But the Applicant failed to tender any proof of registration of its LEXUS trademark registration in the said Class 12, and in his judgment delivered on 21/6/2016, the learned trial Judge, Buba, J., held that – The failure of the 1st Defendant to tender any proof of registration of its purported LEXUS trademark in any Class whether valid or not – shows clearly that the 1st Defendant lacks any legal right whatsoever to properly defend this Suit and should have simply admitted all the averments of the plaintiff in its Statement of Claim – The Court can only adjudicate this matter based on the preponderance of evidence before [it] as proffered by the Parties and same cannot be assumed or inferred.
The trial Court found in favour of the Respondent, and the Applicant appealed to the Court of Appeal. Although its Appeal was successful, the Court of Appeal also observed in its judgment of 29/12/2017 that: Exhibit P4 is a detached car stereo System labelled “LEXUS Premium System”. This fact is undisputed by the parties herein. However, the Appellant argued that it does not fall within the categories of goods in respect of which the 1st Respondent owns a registered Trademark within Classes 9 and 11 under the Fourth Schedule of the Trademarks Act.
That Exhibit P4 is a component part/apparatus of a vehicle in Class 12. Appellant’s Counsel submitted that the Appellant had shown ownership and proprietorship of the Trademark LEXUS for goods in Class 12. This assertion is, however, not borne by the records or traceable to the evidence generated at the trial.
