AREMU vs. LILARAM THAWARDS [1964]DLHC1868

Date	1964-04-21
Suit No.
Citation No.	[1964]DLHC1868

BOISON J.

I. AMOO-LAMPTEY FOR THE PLAINTIFF.

A. C. KUMA (S. A. OKUDZETO WITH HIM) FOR THE DEFENDANTS.

[1964]DLHC1868
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													<main id="main" class="content" style="min-height: 60rem" >AREMU <o:p></o:p>vs. <o:p></o:p>LILARAM THAWARDS <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1964] GLR 253<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
21 APRIL 1964.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

I. AMOO-LAMPTEY FOR THE PLAINTIFF.<o:p></o:p>

A. C. KUMA (S. A. OKUDZETO WITH HIM) FOR THE
DEFENDANTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

BOISON J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF BOISON J.<o:p></o:p>The
plaintiff, trading under the name and style of Jimoh Aremu and Brothers, sued
the defendants for: <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(1) an
injunction to restrain the defendants, their agents and servants from
infringing the plaintiff’s said trade marks and in particular from preventing
them from selling to the public, <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(2) An
amount of £G6,000 damages being profits made on 20,000 dozen pens at six
shillings profit per dozen.<o:p></o:p><o:p>&nbsp;</o:p>The
facts, which are not seriously in dispute, are that the plaintiff is a trader
who deals in fountain pens. Since 1958 he has been ordering from Japan fountain
pens with a “Stone” trade mark as per exhibit A. Exhibits B and C are some of
his invoices for the pens for 1959 and 1962 respectively. The plaintiff applied
for registration of his trade mark in June 1963 and it was published in October
1963 in the Commercial and Industrial Bulletin (No.4) at page 641, exhibit D.
After the publication he found that the defendants were selling fountain pens
of the same trade mark as that which appeared in exhibit D; so he made
enquiries from the No. 7 store of the defendants. He was told they had ordered
about £G20,000 worth of pens. He bought a dozen of such pens as per exhibit E,
and exhibit F is a sample of the dozen pens he bought from the defendants.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>The
defendants’ case in brief was that since January 1963 they have been trading in
“Stone” fountain pen and that exhibits 1 to 12 are their indents and
confirmations from the manufacturers at Japan. When the plaintiff approached
them about the pens, they (the defendants) were prepared to sell the pens at
c.i.f. value plus other charges to the plaintiff but the plaintiff refused.<o:p></o:p><o:p>&nbsp;</o:p>It is
important in this case to distinguish between an application for registration
of trade mark and the registration itself. Sections 16 and 22 of the Trade
Marks Ordinance11 provide that the application be advertised in the Gazette.
Sections 17 and 18 lay down the machinery for opposing the application. When
the machinery has been exhausted and the court has decided the opposition if
any, if there was no opposition after expiration of, at least, nine months from
the date of advertisement, the registrar of trade marks issues his certificate
in accordance with sections 20 and 21. It is only when the registrar has issued
his certificate of registration that the person for the time being registered
is entitled to have the absolute and exclusive right to the use of the
registered trade marks: see section 45 of the Trade Marks Ordinance, Cap. 180
which provides that:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“Subject
to the provisions of section 47 and to any limitations and conditions entered
upon the register, the registration of a person as proprietor of a trade mark
shall, if valid, give to such person the exclusive right to the use of such
trade mark upon or in connection with the goods in respect of which it is
registered: Provided always that where two or more persons are registered proprietors
of the same or substantially the same trade mark in respect of the same goods
no right of exclusive user of such trade mark shall (except so far as their
respective rights shall have been defined by the Court) be acquired by any one
of such persons as against any other by the registration thereof, but each of
such persons shall otherwise have the same rights as if he were the sole
registered proprietor thereof.”<o:p></o:p><o:p>&nbsp;</o:p>