DRAMA OF PASSING-OFF (Unfair Business Competition) 2
(Notice: If you have not read Episode 22, kindly read it before you read this for proper and better understanding. Kindly read it on https://www.facebook.com/164898870886587/posts/1052506882125777/?app=fbl)
(After their arrival from the Prayer, BARRISTER OJULARI, his LEGAL INTERN and MADAM CEO are being served with malt and chicken by the Chambers’ cook. Their discussion continues as they are devouring the delicious chicken)
BARR. OJULARI:-Madam, we have just three things to prove to the Court in order to succeed in your case. We must firstly prove that this product name truly belongs to you and people that are selling your product having known you with it [1].
MADAM CEO:- This is not a problem, I have over one hundred distributors nationwide that can testify to this.
BARR. OJULARI:- Good! The second thing that we shall prove to the Court is that, that Company has actually used your product name, or use something that resembles it, and it is causing confusion in the mind of the Common Customers [2].
MADAM CEO:- Yes of course, people are being confused, most people are buying that company’s product thinking that it is from my own company. I can even get it for you to see, there is no difference. It is like copy and paste.
(She opens a bottle of soft drink and sips the content)
BARR. OJULARI:- Fine! The third and last thing we will prove to the Court is somehow hard.
MADAM CEO:- What is it lawyer?
BARR. OJULARI:- Well, we will prove to the Court that, as that Company is using the name of your product to produce its own, that it has caused actual or probable injury to the goodwill of your business [3].
MADAM CEO:- Lawyer! It is not hard to prove that at all. As that Company is using the name of my product to produce and market its own product, it has caused me so many injury, if it did not, I won’t be crying here in your office.
BARR. OJULARI:- Can you tell me more on that injury that it has caused you?
MADAM CEO:- I have suffered from low sales and loss of income, it is even dragging me into bankruptcy now. I have sold almost all my properties to pay the wages of my staffs, my company may soon ruin wind-up if I don’t take action as soon as possible. (She cries as she uses handkerchief to wipe her face).
BARR. OJULARI:- Don’t cry madam, where there is wrong, there is a remedy!
MADAM CEO:- (with a weak voice) The worst part is that, people are complaining about it and they have been rejecting it in market, but they are also rejecting my product with it. They think it is the same.
BARR. OJULARI:- It is well, I think I am somehow satisfied about what I should know for now. But madam, what would you like the Court to do for you?
MADAM CEO:- Ah! To stop that Company from using the name of my product. That is all sir!
BARR. OJULARI:- Really? That is not all. There are many things that we shall ask from the Court to do for us in respect of this case.
MADAM CEO:- I don’t know Sir. But what ate those things sir?
BARR. OJULARI:- We can ask the Court to grant us the order of INTERIM INJUNCTION to restrain that Company from using your product name to sell its own product until we finish this case and know the outcome[4].
MADAM CEO:- Ah! That is good Sir. I think that should even be the first thing we shall ask from the Court.
BARR. OJULARI:- We can also ask for DAMAGES from the Court, it is a monetary punitive compensation that the Court will order that Company to pay to you[5], we can ask as much as 50 billion Naira.
MADAM CEO:- Wow! Really!
BARR. OJULARI:- Huh! You don’t know what’s going on. We can even ask the Court to grant an order against that Company to DELIVER-UP all its illegal products to us.[6]
MADAM CEO:- Ah! What shall we now do with it?
BARR. OJULARI:- We will destroy it of course. Don’t you want that?
MADAM CEO:- That is good, I want that, thank you my competent lawyer. (She smiles for the first time)
BARR. OJULARI:- This case is very interesting! Do you know that we can ask for ANTON PILLER ODER from the Court too?[7]
MADAM CEO:- What shall we now use that for?
BARR. OJULARI:- It will give us the power to gain access to that Company’s manufacturing premises!
MADAM CEO:- To do what?
BARR. OJULARI:- To seize some of its manufacturing equipment that it is using to produce its illegal product with your name of course! [8]
MADAM CEO:- So it can be done that way too?
BARR. OJULARI:- Ah! The remedy has not yet exhausted , we can also ask for that Company to give us its account of profits on the goods that it has sold illegally, and you will be entitled to the profits that it has made. [10]
MADAM CEO:- Ah! Lawyer! I am now happy. I can not be able to thank you enough for this. How much is your legal professional fee Sir?
BARR. OJULARI:- 25 million naira only.
MADAM CEO:- Ah! That will be too small, I will make it 50 million Naira Sir.
BARR. OJULARI:- Okay MADAM. Lest I forget, we may now finally ask the Court to grant us an order of PERPETUAL INJUNCTION when the case has been concluded to permanently stop that company from using your product name. [11]
MADAM CEO: Please give me your account number now so that I can transfer the amount to you.
(Barrister Ojulari gives MADAM CEO a sheet of paper on which he has written the Chambers’ account number. She collects it and hurriedly transfer the amount to him).
FOOTNOTES
1. WIND-UP: ending all business affairs and includes the closure of the company (including liquidation or dissolution).
2. INTERIM INJUNCTION: a temporary form of injunction which remains in force until a named day or date. By its very nature, it is expected to last for a very short period. (A.I.C. Ltd. Vs. N.N.P.C. (2005) LPELR-6).
3. PERPETUAL INJUNCTION: is an injunction that is directed towards the final settlement and enforcement of the rights of the parties that are in dispute.
REFERENCES
1) The Boots Company Limited V United Niger Imports Limited (1977) 1 A.N.S.L.R 144. See also, Reckitt and Coleman Products v. Borden (1990) 1 AER873.
2) Ibid.
3) Ibid.
4) “An Appraisal Of Passing Off Actions Under Nigerian Law” retrieved from https://www.mondaq.com/nigeria/trademark/704160/an-appraisal-of-passing-off-actions-under-nigerian-law Accessed on 15/09/2022
5) Ibid.
6) Ibid.
7) Anton Piller KG v. Manufacturing Processes Ltd. (1976) Ch. 55; Feredo Limited V. Unibross Store 1 (1980) F.S.R 489
8) Ibid.
9) Ibid.
10) Ibid.
11) Ibid.
ABDULRAUF Abdullahi Adebayo is a Law student, a Certified Teacher and a Writer. He can be reached via the following platforms;
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