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Nigerian Breweries Plc. v. Pabod Breweries Ltd. & Anor.

Court of Appeal

Judgement delivered on Thursday, March 25, 2010
Citation: 53 NIPJD [CA. 2010] 561/2008
Suit No. CA/PH/561/2008      Jurisdiction: Nigeria

BEFORE THEIR LORDSHIPS

SULEIMAN GALADIMA, J.C.A.
ISTIFANUS THOMAS, J.C.A. (Delivering the Lead Judgement)
EJEMBI EKO, J.C.A.

Appearances: Abimbola Akeredolu for the Appellant
Akuro R. George (with A. O. Ojekudu) for the Respondents

I. FACTS

This appeal is against the judgement of the Federal High Court, Port Harcourt Division delivered by I. N. Buba J, on 30th June, 2008.

The appellant as Plaintiff at the lower court commenced proceeding on 10th December, 2007 by Writ of Summons against both respondents who then were defendants. By leave of the lower court, the appellant per its Amended Statement of Claim, dated 4th March, 2008, claimed the following reliefs against the respondents: WHEREOF the Plaintiff claims as follows:

i. A DECLARATION that the Plaintiff is the lawful and registered owner/user in Nigeria and anywhere else of the “STAR LAGER BEER BOTTLE being an Industrial Design registered at the Trade Marks and Patents Registry by the plaintiff with Registration Number 7139.

ii. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st Defendant by itself, its agents, servants, privies, successors-in-title or such other persons howsoever described acting on its behalf or behest from bottling Grand Lager beer or any other lager beer howsoever named in any bottle which resembles, copies, imitates and/or is sufficiently similar to the Plaintiff’s “STAR LAGER BEER BOTTLE” as to cause confusion and constitute an infringement of the’ Plaintiff’s registered design in the said “STAR LAGER BEER BOTTLE”.

iii. AN ORDER OF PERPETUAL INJUNCTION restraining the 2nd Defendant by itself, its agents; servants, privies, successors-in-title or such other persons howsoever described acting on its behalf or behest from producing, reproducing, manufacturing, and fabricating on behalf of the 1st Defendant by itself, its agents, servants, privies, successors-in-title or such other persons howsoever described acting on its behalf or behest or any person whatsoever and bottle which resembles copies, imitates and/or is sufficiently similar to the Plaintiff’s “STAR LAGER BEER BOTTLE” as to cause confusion and constitute an infringement of the Plaintiff’s registered design in the said “STAR LAGER BEER BOTTLE”.

iv. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st and 2nd Defendants jointly and severally, by themselves, their agents, servants, privies, successors-in-title or such other persons howsoever described acting on their behalf or behest from infringing, imitating, copying, producing and manufacturing in any manner whatsoever the Plaintiff’s “STAR LAGER BEER BOTTLE” being an Industrial Design registered at the Trade Marks Registry by the Plaintiff with Registration Number 7139.

v. DAMAGES in the sum N80.000,000 (Eighty Million Naira Only) and costs of this action in the sum of N15,000,000 (Fifteen Million Naira)

vi. AND ORDER directing the Defendants herein to deliver up to the Plaintiff a total of 2,000,000 (two million) pieces of the infringing bottles for the purposes of destruction by crushing of the said bottles.

At the lower court, parties dully filed and exchanged their respective pleadings and by the consent of all counsel, the lower court ordered parties to fix and serve written witness statements in proof of their respective pleadings. To establish its case, the appellant called 2 witnesses, while the 1st respondent also called two witnesses and the 2nd respondent called one witness. After address of both parties, the learned trial Judge dismissed the appellant’s case in its entirety, and hence the appeal to this court which was filed on 3rd September, 2008 though a former Notice of Appeal was filed on 30th June, 2008, and learned counsel for the appellant has and learned counsel for the appellant has sought leave of this court to abandon the former Notice of appeal and has relied on the latter filed on 3rd September 2008, containing 4 grounds of appeal on which he has raised two issues for determination that read as follows:-

“(i) Considering the provisions of the Patents and Design Act Cap. P2 Laws of the Federation of Nigeria 2004 and the Supreme Court’s decision in Uzokwe Vs. Densy Industries Nigeria Ltd (2002) 2 NWLR (Pt 752) 528, whether the design infringed upon and the infringing design are the objects or items for comparison in determining the question of the infringement of a design (ground 1).

(ii) Whether based on the available material evidence before the lower court, the trial Judge applied the applicable proper test in determining whether the 1st respondent Grand Lager Beer Bottle, which was manufactured by the 2nd respondent, constitutes an infringement and an imitation of the appellants Star lager beer bottle (grounds 2, 3, & 4).”

The 1st respondent’s brief was filed on 15th December, 2008 and has raised a sole issue for determination that reads as follows:-

“Whether the learned trial Judge was wrong in holding that the appellant had not shown that the Grand Lager Beer Bottle, closely resembles the Star Lager Bottle of its registered design and therefore not entitled to the reliefs claimed”

On the part of the 2nd respondent, the brief was filed on 15th December, 2008 and has raised 2 issues for determination that read thus:-

“(a) whether or not the learned trial judge misdirected himself by relying on the cases of DENSY INDUSTRIES NIGERIA LTD v. UZOKWE (1998)9 NWLR (Pt 567) 569 and or UZOKWE v. DENSY INDUSTRIES NIGERIA (2002)2 NWLR (Pt 752)528 in reaching the decision that the failure by the appellant to produce and tender the moulds by which both the appellant’s and 1st respondent’s bottles are produced is fatal to the appellant’s case and if the answer to this question is yes, what is the effect of such misdirection? – Issue 1, (Ground 1)

(b) Whether having regard to the circumstances of this evidence led by the parties, the appellant is entitled to Judgment or not Issue 2 – (Ground 2,3,& 4)

It is needless to say that on the 8th February, 2010 when this appeal came up for hearing, learned counsel adopted and relied on their respective briefs dully filed and served.

Before I delve into the parties arguments in determining the relevant issues raised in this appeal, I deem it necessary, albeit briefly, to comment on the appellant’s brief, containing unnecessary and elaborate reproduction of the party’s pleadings at the lower court, along with its grounds of appeal and repetition of witnesses’ evidence including cross-examinations. All these unnecessary massive reproduction, are contained on pages 3 to 27 of appellant’s brief, which is completely uncalled for, because, the record of appeal contains the parties pleadings, evidence in chief and cross-examination. As ably pointed out by the 1st respondent’s preliminary objection to appellant’s brief of argument the appellant has woefully failed to recognize the serious admonitions made by the Supreme Court and this appellate court on unnecessary reproduction of pleadings, evidence etc. in brief writing. With regard to reproduction of grounds of appeal in briefs of argument, our erudite jurist per excellence, Tobi, JSC, in the case of Fagunwa V. Adihi (2004) 17 NWLR (Pt 903) 455 made the admonition to learned counsel in connection with briefs as follows:

“A brief is not a forum for the enumerating or naming grounds of appeal, original or additional. Grounds of appeal are named and articulated in the notice of appeal and their journey ends there.”

In the case of B.B. Apugo & Sons Ltd V. O.H.M.B. (2005) 17 NWLR (Pt 954) 305 at 333. Adekeye JCA as she then was, clearly and firmly stated the importance of good brief writing in appeal matters as follows:

“Our law reports are saturated with authorities on how to write good briefs. Counsel are to bear it at the back of their minds while handling appeals that briefs are vitally important in the dispensation of justice. They play the same role as pleadings in the trial court. They are meant to acquaint and assist the appellant courts in the understanding of the’ cases before them, hence briefs must be concise, straight forward and intelligible, while arguments in support must not be verbose, repetitive or rambling, to as not to make the work of justices in writing their judgments more cumbersome.”

In the instant appeal, learned counsel for the appellant, has gone outside the prescription contained in Order 17 rule 3 of the Court of Appeal Rules 2007. In the rules of this court, there is no express provision that brief writing should contain the reproduction of grounds of appeal, proceedings at the trial court or verbatim, evidence in chief and cross-examination of parties’ witnesses as contained on pages 2-27 of the appellant’s brief of argument.

A good brief is an essential medium in the determination of an appeal. It will assist in arriving at substantial justice between the parties. We have so many decided law reports showing that there are three qualities a brief writing should acquire, namely, clarity, precision and accuracy. Any brief that fails to possess the three qualities, will lead to incomprehension of the arguments, and creates difficulties by voyage into unnecessary speculation as to what the litigant is interested for in the appeal matter. See A.C. B. Plc Vs. N.T.S. Nig. Ltd (2007) 1 NWLR (pt 1016) 596, 616; Anga Vs. Ishie (2005) ’15 NWLR (pt 948) 210, 222; Ogun Vs. Akinyelu (1999) 10 NWLR (Pt 624) 671; Ademolaju Vs. Adempekun (1999) 1 NWLR (Pt 587) 440. Asogwa V. Chukwu (2003) 4 NWLR (Pt 811) 540.

Having arrived so far on appellant’s unnecessary reproduction of court processes in its brief of argument, pages 2-27 thereof is discountenanced because they are contained in the record of appeal, the parties and the appellate court are bound by same having been certified as true record of the matter.

In its argument, the appellant’s basis for appeal is against the reasoning and conclusion reached by the learned trial Judge at page 291-293 of the record where his Lordship stated as follows:

“I must point out right away that in spite of the industry in the plaintiff’s submission. The plaintiff did not deem it fit to reply learned counsel for the defendant on the case of Uzokwe Vs. Densy Industries Ltd (2002) WL 39 LRCN 30 at 38 para P where in it is provided clearly that:

“I am satisfied that the learned trial Judge was in error coming to his conclusion that the two productions are similar and produced from one design by mere “cursory perusal of the external features of exhibit 2 and exhibit 5 similarity in design has nothing to do with its novelty or distinctiveness. A claim for an infringement of rights in design cannot be sustained merely because the infringing product is similar to that of the plaintiff. More is required from the plaintiff bearing in mind the provisions of the Act.”

Elsewhere at pp 39 – 40, paragraphs J – F it is stated thus:

“Thus, to succeed in this claim that his company’s right in design, exhibit 1 had been infringed, the plaintiff has the onus of showing that the finished products comprised in exhibit 2 and 5 are from the same design and not that the product are merely similar as the learned trial Judge concluded in his judgment. He should tender the designs of both product exhibits 2 and 5 for comparison.”

“In the instant case the plaintiff did not deem it fit to tender the moulds in evidence. More so, it is clear from the process that the 2nd defendant is the maker or designer of both exhibits P6 and P7 before the court.

Therefore, the submission of learned counsel to the defendant Mr. P.O. Nyekwere and reference to the case of Densy Industries Ltd V. Uzokwe (supra) and the submissions of Mr. Akuro George that the mould were not produced to enable the court to see whether both bottles are from the same design is well founded.”

It is against the above quoted part of the judgment of the trial court that the appellant is dissatisfied with and lodged its appeal as comprised in the notice of Appeal dated and filed on the 3rd September, 2008. Learned counsel for the appellant had sought to withdraw the earlier notice of appeal dated and filed on 30th June, 2008. There is no objection to the withdrawal of the former notice of appeal and same is therefore struck out. The appellant’s four grounds of appeal are hereby reproduced but without their particulars thus:

Ground 1. The learned trial judge misdirected himself by relying on the case of Densy Industries Nigeria Ltd. V. Uzokwe (1998) 9 NWRR (Pt. 567) 569 in reading the decision that the failure by the appellant to tender the moulds by which both the appellant’s and the 1st respondent’s bottles are produced was total to the success of the appellant’s case.

Ground 2. The learned trial Judge erred in law by failing to apply the proper test for determining the appellant’s claim for infringement of its design right in the “STAR LAGER BEER BOTTLE” by the respondents.

Ground 3. The learned trial Judge erred in law in dismissing the plaintiff’s case in the final analysis despite the evidence led by the plaintiff.

Ground 4. The judgment is against the weight of evidence.

ISSUE 1

In arguing its issue 1 quoted much earlier, the appellant has submitted that there is one major difference between the appellant’s case and the facts of Uzokwe Vs. Densy’s case (supra) and that the difference is not while newness of the design was in issue in Uzokwe V. Densy (supra), the newness of the design was not in issue in the instant case at the trial Court. Counsel referred to the Supreme Court decision at pages 542 paragraph G and 544 in Densy’s case (sypra). Counsel then further submitted that in the instant appeal, its claim at the trial court is not that the respondent’s Grand Lager Beer Bottle was made from the same design as its Star Lager Beer Bottle, but that rather, the crux of the appellant’s case at the trial court is that the respondents Grand Lager Beer Bottle (the design essentially) is an infringement and an obvious imitation of the design of its Star Lager Beer Bottle. Appellant’s counsel referred to the Patent and Design. Act in Sections 19 (1) and (2) and Section 6 (2 of the Act 1990, and then submitted that the peculiarity of its claim is very important in view of the provisions of Section 6 (2) of the Act which is tailored in line with Section 19 (2) of the same Act which provides:

“(2) The reproduction of a registered industrial design is not lawful for the purposes of subsection (1) of this section merely because it differs in minor or inessential ways from the design or …”

Appellants counsel submitted further, that regardless of the nature of the claim in a patent infringement Claim, the required materials for determining such claims are a copy each of the design claimed to be, infringed and that alleged to be an infringement; and that this is so because by the provisions of Section 6 (2) of the Act, it is impossible to determine the terms of any claim for infringement of a patent right without a comparison between the design said to have been infringed upon, and the design alleged to be the fringing copy and counsel urged this appellate court to hold so; and that another major difference between the facts in Uzokwe v. Densy (supra) and the instant appeal is that, the appellant in Uzokwe case only produced in evidence, a copy of the design said to have been infringed, he failed to produce a copy of the infringing design, whereas in the instant appeal, both the designs said to have been infringed and the infringing design were both tendered in evidence as Exhibits P4 and P14 respectively. The appellant is of the view that by the provision of Section 6 (2) of the Act and the concurrent decisions of the Court of Appeal and the Supreme Court in case of Uzokwe v. Densy (supra), it is no more in doubt that the conflicting designs are the necessary objects of comparison; and that therefore in the instant appeal, it was erroneous of the trial judge who concluded that the appellant should have tendered the moulds by which Exhibits P6 and P7 were made. In other words, counsel is of the view that the trial Judge did not understand the differences between a mould and a design for a mould; counsel then referred to and relied on the provisions of Section 12 of the Act which defines what is called a “design”. Counsel also referred to the definition of a mould in the New Webster’s Dictionary, and then contend that in the Patents and Design Acts 1990, there is no reference to what is called “mould” and that to determine whether a design infringes on a registered design, all that is required by the Patents and Designs Act and by case law, is that the designs (i.e. drawings) in issue, is to be produced. That it is a mere surplusage to produce the finished products manufactured or made from the designs for comparison. In concluding its argument on issue number one, appellant has urged this court to hold that the trial judge erred in law by failing to apply or properly apply the relevant and proper test when he ignored the appellant’s argument that Exhibits P4 and P14 are the requirement to compare before reaching his decision. Counsel ended that by consideration of the case law in Uzokwe v. Densy (supra) and the provisions of Sections 6 (2) 9(2) and 12 of the Patents and Designs Act, 1990, the design infringed upon and the infringing design are the objects or items to be compared in determining the question or issue of infringement of a design.

ISSUE 2.

On Issue number 2, learned counsel for the appellant has submitted that by virtue of Sections 2, 12 and 19 of Patents and Design Act Cap P2 Laws of Nigeria 2004 have provided the nature of right conferred on registered owner. That the appellant’s pleadings and the evidence adduced before the trial court, its Star Lager Beer, Bottle design, comprised in Exhibit P4, was admitted by the respondent as a patentable invention which was dully registered under the Act. Appellant then contended that by reason of paucity of Nigeria judicial decision regarding the test for determining the question of infringement of its registered design, he referred to and relied on English authorities to rely on the eye test of the judge and the consumer’s eye test. The English decided authorities relied upon, are the cases of Hecla Foundary Co. Vs Walker Hunter & Co. 14 App Cas 550.J Harper & Co. Ltd Vs. The Wright and Butler Lamp Manufacturing Ltd (1896) 1 Ch. 142 and C & H- Engineering Vs. F. Klucznik & Sons Ltd (1992) FSR 421 at 428.1, Sommer Allibert (U.K) Ltd V. Flair Plastics Ltd (1987) RPC 599, 616.

Learned counsel for the appellant has argued that, due to the alleged paucity of Nigeria courts in determining the eye test, the Federal High court had to rely on the English decided authorities quoted above, on adjudication on cases of infringement of registered design. The Federal High Court decision relied upon is the cases of Summal Foods and Confectionary Ltd V. Wholesome Processing Co. Ltd (1990) FHC II 143 and, Controlled Plastic Ltd V. Black Horse Plastic Ind. Ltd (1990) FHC. Ib 180. In its conclusion of arguments, the appellant has urged this court to hold that the trial court had failed to apply the proper test through the eye of the consumer or customer which would have shown that the 1st respondent’s Grand Lager Beer Bottle had constituted an infringement by fraudulent or obvious imitation of the appellant’s Star Lager Beer Bottle which is capable of confusing the lovers of Star Lager Beer. Counsel urged this court to allow the appeal and grant the reliefs sought in its amended statement of claim which was filed at the lower court.

On the part of the 1st respondent, its sole issue as earlier quoted above is whether the trial judge was wrong in holding that the appellant had not shown that the Grand Bottle closely resembles the Star Bottle of its registered design and therefore, not entitled do the reliefs claimed. Learned counsel for the 1st respondent referred to the appellants reliefs and contended that the appellants case at the lower court was a question of infringement of its “Star Lager Beer Bottle” only and not on its industrial design. In paragraphs 4. 05, 4.06, 4.07 and 4.08 at page 5 of the 1st respondent’s brief, it is argued and I think it is pertinent to set out these paragraphs:-

“4.05 The reliefs …in the appellant Amended Statement of Claim are referable to the “Star Lager Beer Bottle” and the evidence led at the trial by the Appellant as Plaintiffs are also referable to an alleged infringement of its beer bottle.

4.06. The case as presented before the Hon. Court therefore was the question of an infringement of the registered beer bottle.

4.07. it is … necessary to state that what the Appellant registered with the Registrar of Trademarks’ and Patents is an industrial design from which a mould is made before a bottle is manufacture from the mould .

  Appellant concentrate during the trial on the question of an infringement of the bottle rather than an infringement of its industrial design.”

4.08 It is of common ground by all the parties in this case that before a bottle is produced, a mould has to be made. The mould is usually made from the design.

(Underlined is mine).

In its paragraph 4.08 of the 1st respondent’s brief, it is argued that, it is of common ground by all the parties in the instant appeal, that, before a bottle is produced, a mould has to be made, that the mould is usually made from the design. Counsel then contended that in this case, for the court to come to a conclusion as to the existence of an infringement, it needs necessarily to take cognisance of the design moulds and the bottles for purposes of comparison, and that the issue of the use of the moulds for comparison, became imperative, as the appellant did not during the course of its case, tender the design which it claimed was an infringement of its registered design. Counsel for the 1st respondent further submitted that at the trial, the appellant also did not deem it necessary to tender the design or mould of the 1st respondent on which the Grand beer bottle was manufactured, that rather, the appellant only tendered Exhibit P4 which is its design of “Star Lager Beer Bottle”.

In connection to the appellant’s argument on the eye test of the consumer on English authorities, learned counsel for the 1st respondent is of the view that the relevant tests relied upon do not help the case of the appellant, because the two designs for the purposes of comparison and appreciating the extent of similarities or being imitation were never tendered by the appellant.

Learned counsel for the 1st respondent further submitted that, for the consumer test to be accepted by the trial court a consumer should have been called to testify, but in this appeal the appellant did not call any consumer as a witness. Counsel referred to the case of Thomas Fatoba Vs. Julius Ogundahunsi (2003) 14 NWLR (Pt,840) 323 that says a trial court will rely only on the evidence available and cannot rely on mere address of counsel which cannot substitute evidence. Counsel urged this appellate court to resolve the issue against the appellant and rely and affirm the reliance of the trial court in the case of Uzokwe V. Densy Industries Ltd (supra).

In respect to the 2nd respondents brief, it is rightly argued and agreed by learned counsel that, for the trial judge to determine the issue of infringement or imitation of a product, the two respective designs or moulds must be tendered in evidence, and that in the instant appeal, the appellant woefully failed to do this. Counsel referred to the definition of a “design” in Section 32 (1) of the Patents and Designs Act Cap P2, Laws of Nigeria, 2004.

The 2nd respondent has contented that Exhibits P4 and P14 tendered by the appellant were not the designs registered as an industrial design under the Act because for something to qualify as a design, it must first and foremost, be a combination of lines and colour and any model or sample or thing that has a structure having three dimension i.e, measurable as height, width and depth. Counsel has forcefully argued that Exhibits P4 and P14 are mere “design drawing” or “design specification” and not the moulds from which the bottles are industrially produced by multification. Counsel relied on Section 15 (1) (a) (iii) of the Act. The 2nd respondent argument is in tandem with the argument, of 1st respondent which is to the effect that the drawings Exhibits P4 and P14 are not the design but representation of the designs, and the design are the moulds, That what the appellant ought to have presented in evidence for comparison and examination are not the “drawings” or “representations” of the designs, but the design itself, i.e the moulds. Counsel has further contended that the trial Judge had rightly relied on the decisions of the Court of Appeal and the Supreme Court in the cases of Uzokwe Vs. Densy cases (supra) and Mrs. Christiana Etaluku v. the Nigeria Bottling Co. Plc (2004) 15 NWLR (Pt.896) 370, which held that the moulds and not Exhibits P4 and P14 should have been tendered for examination and that the failure of the appellant to tender the mould is fatal to the appellant’s case. Counsel has further submitted that the requisite moulds in the instant appeal were available having been seized and an order for inventory was made, pursuant to an earlier order of court when injunction was granted by motion ex-parte, but appellant failed to tender the moulds and therefore fatal to appellant’s case by virtue of Section 149 (d) of the Evidence Act….In a nutshell, the 2nd respondent’s brief is in tandem with the briefs of the 1st respondent and it is not necessary to reproduce or refer to relevant 2nd respondent’s argument.

In order to determine the appellant’s main complaint in instituting the suit at the trial court, which was dismissed for failure to tender the relevant moulds, I deem it necessary to look at the relevant pleadings because parties are bound by their pleadings, and what is not pleaded go to no issue. Parties can not give evidence on what is not pleaded. See Yusuf V. Adegoke (2007) 11 NWLR (Pt. 1045) 222, U.B.N. Plc V. Ayodare & Sons Nig. Ltd (2007) 13 NWLR (Pt 1052) 567; Adetoun Oladeji (Nig) Ltd V. N.B. Plc (2007) 5 NWLR (Pt 1022) 415 and Abubakar V. Yar’Adua (2008) 19 NWLR (Pt 1120) 1, 152-153 paras H-C.”

The appellant’s amended statements of claim are in paragraphs 8, 12, 19, & 21 at pages 166-169 of the record, thus:-

“8. The plaintiff further avers that it had to commission the services of mould makers in Belgium N.V. Omco SA, to fabricate moulds for the manufacture of bottles for the bottling for the new Star Lager Beer.

12. Since the registration of the industrial design in the “STAR LAGER BEER BODLE”, the plaintiff has spent a fortune commissioning the production of moulds and bottles for the production of the bottle by several manufacturers. To date the plaintiff has taken delivery of bottles from several manufacturers…

14. The plaintiff avers that recently in the year 2007 …also commissioned the 2nd Defendant to co- produce the “STAR LAGER BEER BOTTLE” for the production of the Star lager Beer.

19. The plaintiff avers that the bottle produced and manufactured by the 2nd Defendant for the 1st Defendant closely and sufficiently resembles the “STAR LAGER BEER BOTTLE” as to cause confusion and constitute an infringement of the plaintiff’s registered industrial design in the STAR LAGER BEER BOTTLE. The plaintiff shall at the trial rely on the STAR LAGER BEER BOTTLE and the infringing bottle manufactured by the 2nd Defendant for the 1st Defendant.

21. The plaintiff will contend at the trial that the resemblance between the infringing bottle and the STAR LAGER BEER BOTTLE will cause disruptions in the plaintiff’s bottles operations as the infringing bottles will find their ways into the plaintiffs/applicants premises and system.”

(underlined are mine for emphasis).

From the quoted appellants pleadings in paragraph 8, the appellant should have specifically tendered the Belgium, NV OmooSA moulds which were fabricated for the manufacture and production of its Star Bottles. In the same vein, the appellant should have tendered “the production of moulds and bottles for the production of the bottles by several manufacturers “as averred in its pleadings in paragraph 12. It is not sufficient to just plead and assert or aver that it spent a fortune in commissioning of the mould or bottles for over four billion naira. The appellant should have gone further miles, by tendering the moulds. The purpose for tendering the appellant’s moulds is to enable the trial court, to compare the 1st respondent’s mould used in the manufacture of Grand Lager Bottles. This is imperative because, bottles are not made from the thin air. Bottles are produced from mould(s) that are registered. I am not unaware that, the appellant’s case at the trial was the issue of infringement of its registered star lager beer bottle. However, it is important to know that what the appellant registered at the Trademarks and Patents is an industrial design, which is called industrial mould from which the star lager, beer bottle, is manufactured. The appellant’s PW1, Mr. Tory Agenmonmer, under cross- examination at page 141 of the record, had destroyed the appellant’s needs of relying on drawings on page 67 of record which is its “Star Lager Beer Bottle.” The cross-examination at page 141 of the record reads:-

“There is no drawing in respect of exhibits P7. I can compare without the drawing. For the purpose of ascertaining the difference my drawing is of no consequence to the consumer. (EXHIBITS P6 & P7 were displayed before the court) all the bottles can be drawn but we do not have the facilities we have our drawings. We expect that the Defendant will also bring their drawing Exhibit P6 and P7 are made after a mould has been done.”

(Underlined is mine)

The cross-examination stated by appellant’s PW1 quoted above is that ,the issue of the appellant’s design in Exhibits P6 and P7 which are the star bottle and grand bottle drawings relied upon by the appellant can never establish the outcome of comparison for the purpose of infringement. This piece of evidence has not been controverted, denied or challenged by the appellant. Moreover, PW1 is appellant’s witness. PW1 concluded his evidence under cross-examination by stating that a bottle can be produced only after a mould has been made. In other words, the bottle is manufactured from the mould.

Now since it is no more in doubt that, the appellant tendered only the drawing of his star beer bottle, it had thus failed the totality of its pleadings and evidence, that the 1st respondent’s grand beer bottle, has imitated, resembled copied or similmised the appellant’s star beer bottle. This is so, because the appellant could not establish that the two different bottles are manufactured from the same mould which is also called the registered industrial design. This is in consonance with the Supreme Court’s decision in Uzokwe v. Densy (supra) that says, the disputing design (mould) should be tendered for the purposes of comparison. Without tendering the mould or design for the trial judge to see by his eyes, it means his chances of comparison are, absent. In the instant appeal, the trial court in its judgment at pages 292-293 of the record, established soundly as follows:-

Therefore, the submission of learned counsel to the defendant Mr. P.O. Nyekwere and reference to the case of Densy Industries Ltd v. Uzokwe (supra) and the submissions of Mr. Akuro George that the moulds were not produced to enable the court to see whether both bottles are from the same design is well founded…

In any case, the witness for the 1st defendant DW2 stated categorically that the bottles are made from different moulds and the mould of one cannot be used for another.

In my considered opinion, the evidencial findings and the submissions of the two respondent learned counsels are still intact and valid as reasoned by the trial court. I have no reason to alter the findings of a trial court which are based on the failure of the appellant to tender by evidence, the requisite exhibits by way of moulds. The appellant has not convinced me that the 1st respondent’s grand beer bottle is an imitation or similar to its star beer bottle and that it amounts to an infringement of its Registered “Star Lager Beer Bottle Design” as it argued in its brief. In other words, the appellant has failed to establish its case in accord with Sections 136 and 137 of the Evidence Act, 2004.

The appellant made heavy weather on the English eye test of the customer to whom moulds are manufactured. But in the instant appeal, appellant as stated much earlier, did not call any customer as a witness to state his reactions as to whether he has been misled’ by imitation between the physical appearances of Exhibits P6 and P7 being the star bottles and the grand bottles respectively. I am of the solid foundation that

wherever it is clear that, there are binding authorities or decisions by the appellate courts in Nigeria, by way of stare decisis, the trial court or simply lower courts, are bound to follow, and the trial court will not rely on foreign decided authorities except for the purposes of persuasion only see Adetunji v. Adesokan (1994) 6 SCNJ (Pt.) 123, Odua v. Talabi (1997) 7 SCNJ (pt.) 600.

In the instant appeal, the appellant should have shown that his star beer bottle, namely Exhibit P6 and the 1st respondents’ grand beer bottle i.e Exhibit P7, are from the same design or mould, and not just that the two bottles are similar or one is imitating or copying the other bottle. In the instant appeal, it is not in dispute that, at the trial court, the appellant did not tender by way of evidence, the resultant moulds from which the star beer bottle and the grand beer bottle were industrially produced. By way of evidence adduced at pages 162-161 of the record, the 2nd respondent had debunked the appellant’s contention that 1st respondent had infringed its design by producing imitated, copied or similar grand beer bottles. The 2nd respondent’s written deposition was adopted and relied upon and therefore, became the evidence in chief before the appellant cross-examined the witness. Paragraph 3, 4, 5 and 9 are apt and they read thus:-

“3. The design of the plaintiff Star bottle that we produced and the 1st Defendant’s Grand bottle also produced by us are materially and substantially different.

4. In particular, some of the differences in the drawing/bottles are summarized below in tabular form.

No  Items       Grand Bear Bottle    Star Beer Bottle      Differences

1.  Glass Weight    490 +/- 1.5gm       524+/-5ml    Big difference 34gm

2.  Bamful Cap    622.8ml+/-6.5ml    635+/-5ml    Big different 12.2ml

3.  Full point Cap    600ml +/- 6.5ml   600ml+/-5ml      

4.  Fill line from    60mm          65mm      A difference 5mm

    top of finish

5.  Root of neck   49.5mm Dia  57.23mm Dia    Signifying 7.73mm

    Diameter                      difference

6.    Shoulder

    Radius       40mm          50mm       10mm difference

7.    Shape of

    the Neck    Not same   Difference

8.  Logo on the    Engraved octagonal   Engraved star design    Prominent

   Shoulder       shape design 25mm     14mm tip to tip across,

   Dia. With encircle           four pieces at 90 apart

  Letter G at the center,      and small/protruding

    Two pieces 180 apart.    2mm from bottle surface.

   Positioned mid way in      positioned ‘be to top of

      the sholder                the shoulder curve

9.  Engraved ring    2.4mm wide and    None  Prominent

    ring on lower    protruding 1.5mm              Distinguished

    side of neck    from the body of the          feature

    neck area

10. Engraved ring    2.4mm wide and   None   Prominent

    ring on upper    protruding 1.5mm              Distinguished

    side of neck    from the body of the            feature

          neck area

11.  CID dot code   Present at 7.6mm    None    Prominent

above the base of              Distinguished

   the bottle                                                feature

12.  Embossing    Present     Absent       Difference

    of 60mm

    diameter at

    the in sweep

13.  Embossing of 60cl filling Capacity    Present    Absent      Difference

      at   the in sweep

5. The above differences and distinguishing features are very obvious and will no way cause confusion that will lead one to mistaken the two bottles one for the other.

9. The outlook of the two bottles and their features’ are totally different that there will be no case of mixed up between them.

I am convinced with the position of the two respondents that, the testimonies of ‘DW2 and DW3 with respect to the differences of the two bottles quoted above in paragraphs 3, 4, 5, and 9 were not denied or controverted by the appellant, moreso the appellant’s witnesses had clearly admitted the difference in height, logo, and the moulds, their label, liquid content and corks.

There are plethora of cases on law that unchallenged or uncontroverted evidence will be deemed admitted and the court can rely on same. See Okike v. L.P.D.C (2005) 15 NWLR (Pt, 949)7, 471 S.C. Ivienagbor V. Bazuaye (1999) 4 NWLR (PT. 620) 552. In this appeal, the evidence of 2nd respondent at the trial remains valid and reliable evidence. It is further noted that at the trial proceedings, the appellant had sought by motion ex-parte and was granted leave, to inspect, collect and tender the relevant evidence he could want from the 1st and 2nd respondents industry, such as design or mould used in the production of the grand lager bottles. See pages 125-128 of the record where the learned trial judge granted the prayers in the motion- expart- they read as follows:-

1. Trial court, in the application granted, the appellant went into issues of d. An interim order directing the 1st Defendant, by itself, its agents, servants, privies, successors-in-title or such other persons howsoever described acting on its behalf or at its behest to permit the Plaintiff herein by its solicitors and other officers of this Court in the company of Officers of the Nigerian Police Force to enter the 1st Defendant’s premises at Plot 186/187 Trans Amadi Industrial Layout, Port Harcourt Rivers State or any premises under the control of the 1st Defendant relevant for the purpose, to search for, examine and take inventory of all bottles resembling imitating and infringing the Plaintiff/Applicant’s ‘STAR LAGER BEER BOTTLE’ and only remove on sample each of the bottle, drawings, sketches, pictures, diagrams and moulds and bring to court being an Industrial Design registered at the Trade Marks Registry by the Plaintiff/Applicant with Registration Number 7139, used in producing the imitating bottles into the custody of this Court is hereby made pending the hearing and determination of the Motion on Notice filed contemporaneously herewith

2. An interim order directing the 2nd Defendant by itself, its agents, servants, privies, successors-in-title or such other persons howsoever described acting on its behalf or at its behest to permit the plaintiff herein, by its solicitors and other officers of this Court in the company of officers of the Nigerian Police Force to enter the 2nd Defendant’s premises at No.134 Trans-Amadi Industrial Layout, Port Harcourt, Rivers State or any premises under the control of the 2nd Defendant as may be relevant for the purpose, to search for examine and remove one each of the bottles, drawings, sketches, pictures, diagrams and moulds produced and manufactured by the 2nd Defendant or by any persons howsoever described, resembling, imitating the mingling the Plaintiff/Applicant’s ‘STAR LAGER BEER BOTTLE” being an Industrial Design registered at the Trade Marks Registry by the Plaintiff/Applicant with Registration Number 7139, into the custody of this Court is also hereby made pending the hearing and determination of the MOTION ON Notice filed contemporaneously herewith.

3. The Respondents shall not tamper with the inventories taken. A copy of the inventory shall be filed in this court.”

(Underlined is mine).

From the above stated reliefs granted to the appellant in paragraphs land 2, it is no more in dispute that it was to bring to court a sample of each bottle, drawings sketches, pictures, diagrams and MOULDS. From the above discretion given to the appellant, the pertinent question that really bothered the trial and this appellate court is this, why could not the appellant produce the specific MOULDS of itself and that of the 1st respondents?. In my considered opinion, the irresistible conclusion is that, the appellant on his own volition, deemed it unnecessary or unhelpful, to bring the respective parties MOULD because it would have adversely destroy its case. This may look speculation which should not be used in a court of Justice. But in the instant matter, it was the appellant who sought and was granted leave to search and bring the two respondents MOULDS. Court’s orders are made to be obeyed. Instead of complying with the open discretion of the trial court, in the application granted, the appellant went into issues of drawing of the bottles, namely exhibits P6, P7, P4 and P14 which are mere preparations, to the creation of the final products, namely the moulds of each party.

In this case, the trial Judge was not given the singular opportunity to use his eye by looking at and compare the moulds in dispute to enable him to see if the moulds from which bottles are manufactured, had infact infringed the appellant’s product. In this matter, it is patently wrong for the appellant to accuse the trial Judge that, he did not follow the English decided authorities, but wrongly applied the principle in Uzokwe V. Densy Industries Ltd (supra).

I have to point out that, a litigant is not allowed to set up inconsistent positions in connection with his case.

In this appeal, appellant’s witness PW1 under cross-examination was consistent on the word “MOULD” see page 145 Lines 15-18 as thus:-

“… I did not find out if the 2nd defendant uses the same Mould for exhibit P6 and P7. Bottles that are exactly the same are produced from the same Mould, and bottles that are similar are produced from different Mould.”

In appellant’s brief, the word “Mould” is conspicuously, absent. In stead, the appellant has preferred to use the word “design” or “registered design”. I have carefully looked at Exhibits P4 and P14 at pages 43 and 45 of the record. I must state clearly that, Exhibits P4 and P14 are not the design, but the finished products in the two different industrial designs (moulds). They are mere drawings of the bottles of star and grand. My observation has shown that even a blind man can detect the major differences of the bottles by using his hand in touching the bottles. The logos are quite different. See the 2nd respondent’s differences in drawings of the bottles summarized in paragraphs 4 tabulated above.

The appellant’s argument that the materials which this appellate court will examine are exhibits P4 and P14 which are the design drawings for the “Star Lager Beer Bottle and the “grand Lager Beer Bottle respectively on the authority of English Patents, Designs and Trade Mark Act 1883, is unconvincing, because we have our own legislative Act, namely, Patent and Design Ad. Cap P2 Laws of Nigeria, 2004, in which a clear definition of what a design is made in Section 12 of the Act. It reads thus:-

“Any combination of lines or colours or both, and any three-dimensional form whether or not associate with colours, is an industrial design, it is intended by the creator to be used as a model or pattern to be multiplied by industrial process and is not intended solely to obtain a technical result.”

In my considered opinion, a community reading of the definition of Section 12 of the Act, “an industrial design” is a model or pattern to be multiplied by industrial process, namely the mould. Bottles do not multiply itself, but the mould. It is also not the “drawings” of the bottle, but the mould design is what is to be registered for the purpose of protection under Section 19 of the Act that reads:

“9. (1) Registration of an industrial design confers upon the registered owner, the right to preclude any other person from doing any of the following acts:”

In the final analysis, the finding of the lower court that, the appellant’s case collapsed because it failed to tender the mould of its own and the 1st respondent’s mould complained about is affirmed by me. I have no reason to differ or alter the sound decision. A trial will rely on available relevant evidence proffered by the parties.

There is abundant evidence that support the decisions of the lower court that the star beer bottle and the grand beer bottle, are quite different to an extent that, no reasonable consumer will be misled or confused, as to which beer bottle, he would like to consume. The appeal is unmeritorious and it ought to be and is hereby dismissed.

Costs of N50, 000 each to the 1st and 2nd respondents.

SULEIMAN GALADIMA, J.C.A: I have had a preview of the judgment read by my learned Brother THOMAS J.C.A. He had very carefully and ably dealt with the complaints of the parties, particularly the Appellants in the Appeal. I respectfully adopt the reasoning therein and accept the conclusion.

It is common ground by all the parties, in this case that before a bottle is produced, a mould has to be made from the design. For the court to come to a conclusion as to the existence of an infringement, it needs necessarily to take cognizance of the design moulds and the bottles for purposes of comparison. In the course of its case, the Appellant did not tender the design or mould of the 1st Respondent on which the Grand Beer Bottle was manufactured. Rather, the appellant only tendered Exhibit P4 which is its either product as a witness. In UZOKWE v. DENSY IND. (NIG.) LTD. (2002) 2 NWLR (Pt, 752) 528 at 542 – 543 the Supreme per OGWUEGBU J.S.C. held as follows:

“I am satisfied that the learned trial Judge was in error in coming to his conclusion that the two products are similar and are produced from one design by mere “cursory perusal of the external appearance of Exhibit (2) and Exhibit 5”. Similarity in design has nothing to do with its novelty or distinctiveness. A claim for an infringement of rights in design cannot be sustained merely because the infringing product is similar to that of the plaintiff. The earlier observation of the learned trial Judge that ‘owing to the absence of the design for Exhibit ‘5’ he could not compare Exhibit ‘2’ and ‘5’ is sound, but he derailed when he proceeded to compare the finished products as against the designs from which they were produced’.

Appellant was at liberty, when it was granted relief sought by motion ex-parte to bring before the trial court, a sample of each bottle, drawings, sketches, pictures, diagrams and moulds produced and manufactured by the 1st Respondent. It failed to do exactly that. It is presumed that if it produced the above listed items, they would have produced unfavourable evidence to the Appellant. See S. 149(d) Evidence Act.

For the foregoing reasons and more detailed in the lead Judgment, I affirm the finding of the court below that the Appellant’s case collapsed because it failed to tender its mould and that of the 1st Respondent complained of.

In the final analysis, I hold that this Appeal is lacking in merit and it is dismissed. I abide by the assessment of costs of N50,000 each to the 1st and 2nd Respondent.

EJEMBI EKO, J.C.A: I read in advance the draft of the judgment just delivered by my learned brother, ISTIFANUS THOMAS, JCA. I agree that the appeal lacks substance.

The case of the appellant, as the plaintiff at the trial court, is that 1st respondent’s Grand Lager beer bottle is an obvious imitation of the design of their Star Lager beer bottle. The uncontradicted evidence of DW.2, particularly the evidence in-chief comprised in the witness’ deposition on oath at pages 162 – 164 of the printed Record, has dealt fatal blows on the appellant’s case. Unarguably, the DW.2 was an expert in the field of bottle producing. His evidence that –

The design of the plaintiff’s Star bottle that we produced and the 1st Defendant’s Grand bottle also produced by us, are materially and substantially different completely knocks off the bottom from the appellant’s case.

Obvious imitation of design in patent rights infringement is not just what appears obvious at a glance to the uneducated or unskilled eye, but what, according to Chity, J in GROFTON v. WATSON (1884) 50 L.T. 420 at page 424, is “obvious to the Judge or to the jury with the assistance of experts – persons conversant with the particular trade”, as the DW.2.

I think and I hold that, the evidence of DW.2 satisfies the Common Law Standard as in the statement of law in HELCA FOUNDRY CO & ORS v. WALKER HUNTER & CO (1889) APP. Cas. 550 at page 555 per Lord Herschell, to Wit –

It seems to me, therefore, that the eye must be the Judge in such a case as this, and that the question must be determined by placing the designs side by side and asking whether they are the same, or whether the one is the obvious imitation of the other.

In design infringement disputes, it is not enough for the complainant to merely allege similarity of the new design to his design. See DENSY INDUSTRIES LTD v. UZOKWE (1998) 9 NWLR [pt 567] 569 at 585. There must be “in some way a special, peculiar, distinctive, significant or striking appearance” that has been imitated in the latter design of the defendant. See METROPOLITAN INDUSTRIES (NIG) LTD v. INDUSTRIAL APPLICATIONS (NIG) LTD (1973) NSCC 14. The DW.2 gave particulars of “material and substantial” differences between the appellant’s Star Lager bottle and the 1St respondent’s Grand Lager beer bottle that have not been rebutted by any credible evidence. In virtue of section 75 of Evidence Act facts not disputed, or unrebutted, are deemed admitted and therefore need no further proof. See ALAGBE, V. ABIMBOLA (1978) 2 SC 39; ODUME v. NNACHI (1964) 1 ALL NLR 1; ETUWEWE v. ETUWEWE (1993) 2 NWLR [pt.274] 185.

The lead judgment is quite exhaustive. I completely agree with, and I hereby adopt it including all consequential orders therein.

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