DRAMA OF PASSING-OFF
(Unfair Business Competition)
(Inside his office, Barr. Ojulari is attending to a Client, a Madam, who happens to be the CEO of a Company).
BARR.OJULARI:- How may I help you ma?
MADAM CEO:- I am here to discuss two things with you lawyer. The first is that, I will like to retain your service permanently, so that I can be taking legal advice from you.
BARR. OJULARI: – That is not a problem, that is why we are trained as a Solicitor. We will provide retainership agreement document for you to sign, but before then, what is the second thing you will like me to help you with?
MADAM CEO:- Sir! I am in a state of depression at this moment. I am not happy at all.
BARR. OJULARI:-Why?
MADAM CEO: – I am the CEO and MD of Abd Beverages Ltd., My company is producing Yoghurts which I am producing with A-Yoghurts as my product’s name, but my problem is that another Company is now producing yoghurt with the name of my product.
BARR. OJULARI:-Pathetic! So, you mean that the Company is also using A-Yoghurt to sell its Yoghurts. The product name that everyone has known you with?
MADAM CEO:- Yes Lawyer The Company keeps on hijacking my Customers everyday because people are thinking that their product is also from my company!
BARR. OJULARI:- That is serious!
MADAM CEO:- I have been losing Customers because the people don’t even know that it is not from same company (starts crying).
(Barr. Ojulari brings out one white handkerchief and gives it to MADAM CEO to wipe her face)
BARR. OJULARI :- I am sorry to know that Madam. The Company that you are talking about, is it bearing the same name with your Company?
MADAM CEO: -No, its name is different from mine, the name of my Company is Abd Beverages Ltd, the name of that Company is Ehm Ehm! I’ve forgotten (tears roll out of her eyes as she uses handkerchief to wipe it).
BARR. OJULARI:- Be calm, be calm! All is well.
MADAM CEO: -Thank you Sir!
BARR. OJULARI :- Your product that you are talking about, do you mean that the large number of people have known that product with the name that you give to it?
MADAM CEO:- Yes Barrister.
BARR.OJULARI :- Okay Madam, Because that Company is now using your yoghurt product name to sell its own too, it is now causing loss to your company right?
MADAM CEO: -Yes Barrister!
BARR.OJULARI:- Madam, this product name that you are talking about, have you registered it under Trademark Act at the Trademark registry ?
MADAM CEO:- I have started the process, but you know that it is a long time process, but the Registry has given me ACCEPTANCE FORM and ACKNOWLEDGMENT FORM.
BARR. OJULARI :- Good! Madam, you don’t have to be depressed “ibi jus ubi remedium”, where there is wrong, there is remedy.
BARR. OJULARI:- Yes, you will. We are going to sue that Company to court for the offence of PASSING OFF.
(The Firm’s Legal Intern enters and sits on a red comfy chair near Barr. Ojulari)
MADAM CEO:- (confused) Lawyer, please get me right. I am not saying that they pass through my company to sell their product sir. What is I am telling you is that, that Company is using the name of my product to sell its own, and it is affecting my business.
BARR.OJULARI:- (smiles) I understand you clearly. You know, PASING OFF is the act of or an instance of false representing one’s own product as that of another in an attempt to deceive potential buyers [1].
MADAM CEO: – Okay! So now that the company is selling its own product with my product’s name, which is making the buyers to think that the product is from my own’s company, is that what is called PASING OFF?
BARR.OJULARI:- Yes Madam. The fundamental rule of law is that, one man has no right to put off his goods for sale as the goods of rival traders [2].
MADAM CEO:- So, are you assuring me that the law is on my side?
BARR.OJULARI:- Of Course! It is unlawful for that company to be selling its product with the same name that you are using to sell yours. It is an obvious attempt to profit from the good will and reputation that you have built [3].
MADAM CEO:- Okay Lawyer.
BARR.OJULARI:- For example now, it ill be unlawful for me to start manufacturing soft drinks now and called it Pepsi or Bigi Cola, because that name has already been taken by some companies or I should start manufacturing Laptops now and call it Hp or DELL. I will be guilty of PASSING OFF if I do that.
MADAM CEO:- Okay Lawyer, I have understood now.
BARR.OJULARI:- By using those product’s name to deceive people to by my own product and making them to believe that it is the same product as their original Companies’ when it is actually not. If I do so, I will be liable for trademark infringement under the law.
MADAM CEO: Hmmmmmmmmm! Hhhhmmm!
BARR.OJULARI:- Your own case will just be slightly different. The Acceptance Form and Acknowledgement Form that were give to you at the trademark registry are not evidence enough for us to sue that Company for trademark infringement, the only document that can be used as evidence to sue for that is the CERTIFICATE OF TRADEMARK REGISTRATION [4].
MADAM CEO:- What am I going to do now?
BARR.OJULARI:- That is why we must sue them for the Offence of PASSING OF. That has no right to be using your trade name to sell its goods.
MADAM CEO:- Okay Barrister.
(Barr. Ojulari checks his wrist watch)
BARR.OJULARI:- Its time for SALAT (Muslim daily prayer) I want to go and pray now, you will have to excuse me. I will be right back.
MADAM CEO:- I am also a Muslim, lets go to the Mosque together please.
(They both leave the office and go to the Mosque for Prayer together with the Legal Intern.)
FOOTNOTE(S)
PRODUCT: Something that is produced and sold in large quantities, often as a result of a manufacturing process.
SOLICITOR: A lawyer who gives legal advice and prepares documents.
TRADEMARK: A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises.
TRADEMARK ACT: The law made by the legislation to regulate Trademark
TRADEMARK Registry : The specified office where Trademark is being officially registered.
ACCEPTANCE FORM : This is the form issued where the trade mark is deemed satisfactory by the Trademark Registry.
ACKNOWLEDGMENT FORM: This form is also issued in the process of Trademark registration.
REFERENCE(S)
[1] Black Law’s Dictionary Ninth Edition
[2] Leather Cloth Co. v. American Leather Cloth Co. (1865) 11 H.L. Cas. 523 at 538
[3] Kodilinye & Aluko “The Nigerian Law of Torts” p221
[4] Omnia (NIg) v. Dyktrade Ltd. (2007) 15 NWLR (pt. 1058) 576 .
ABDULRAUF Abdullahi Adebayo, is a Law student, a Certified Teacher and a Writer. He can be reached on the following platforms;
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