By Onyewuchi Ojinnaka
A Federal High Court sitting in Lagos Nigeria has affirmed the decision of the Registrar of Trade Marks (2nd respondent) which directed a business outfit, Incus Global Concerns Limited (1st respondent), to go ahead and register its trade mark as ‘Hanco Tagless 3 Tanks’ in Class 25 which business is in relation to clothing, footwear ex-cetera.
Consequently, the appeal filed by another business outfit HBI Global Concerns Limited Inc.(appellant) challenging the decision of the Registrar of Trade Marks which had earlier dismissed its opposition against the registration of Hanco Tagless 3 Tanks as the trade mark of the 1st respondent was also dismissed by the court.
While delivering judgement on the appeal filed by the appellant, the presiding judge, Justice Nicholas Oweibo said:
“Having considered closely the evidence before the 2nd respondent, the statutory and judicial authorities referred to and the trade mark in contention, I cannot fault the decision of the 2nd respondent that the 1st respondent’s Hanco Tagless 3 Tanks is inherently distinctive.
“I therefore uphold the decision and directives of the 2nd respondent.
“The appeal is accordingly dismissed. I award cost of N100,000 against the appellant, in favour of the 1st respondent.
Incus Global Concerns Limited through its counsel Tochukwu Onyiuke, averred that that inorder to carry out a lawful business in Nigeria, it has to register a trade mark that will distinguish its products from other similar products.
Consequently, by a trade mark No NG/TM/0/2014/15317, it applied to register the trade mark ” Hanco Tagless 3 Tanks” in Class 25 in relation to clothing, footwear and other similar products.
Having received the application for the proposed trade mark, it was advertised and HBI Branded Apparel Limited Inc. filed a Notice of Opposition dated March 30, 2015 before the Registrar of Trade Marks.
After the required processes were filed by counsel to parties, the 2nd respondent heard their submissions on February 16, 2017 and in its ruling, the Registrar of Trade Marks dismissed the opposition by HBI Branded Apparel Limited Inc. and at the same time directed Incus Global Concerns Limited to proceed to registration.
Disatisfied with the ruling of the Registrar of Trade Marks, HBI Global Concerns Limited Inc. approached the Federal High Court to challenge the decision.
In the amended Originating Motion filed on the 9th of November, 2018, the appellant sought the following reliefs:
“An Order setting aside the decision of the 2nd respondent dated 16, February, 2017 dismissing the appellant’s opposition to the Trade Mark application No. NG/TM/0/2014/14317 Hanco Tagless 3 Tanks in Class 25 and directing that the offending trade mark application proceed to registration.
“An Order directing the 2nd respondent to refuse the registration of the Trade Mark application No NG/TM/0/2014/14317.
“An Order that the costs of and occasioned by this appeal be paid to the appellant by the 1st respondent. The 1st respondent’s lawyer, Tochukwu Onyiuke responded accordingly and one of the four issues he raised for determination was whether from the evidence available to the court, the appellant has any registered trademark in Nigeria giving it the legal standing to oppose the offending trade mark application lodged by the 1st respondent?.
