Court restrains company over HB12 trademark infringement

By Henry Ojelu
The Federal High Court of Nigeria, Lagos Division, has restrained Pasbrun Laboratories and its Managing Director, Mr Peter Okonkwo, from further production and sale of products found to have infringed on the registered trademark and industrial design of United African Laboratory.

In the judgment obtained by Vanguard, the court presided over by Justice Lewis-Allagoa in suit no: FHC/L/CS/2123/2023, granted all the reliefs sought by the plaintiff and awarded N2 million as the cost of the action.

United African Laboratory had approached the court seeking declarations that it is the lawful owner of the trademark “HB12 Haemoglobin Syrup” under Class 5, No. 72228, issued by the Federal Ministry of Trade and Investment, Design Registry, Abuja.

It also sought recognition of its proprietary design in “Dr Hommel’s Cod Liver Oil,” covered by Design Acknowledgement Letter No: NG/DS/NT/2023/2492.

The company further prayed for perpetual injunctions restraining the defendants, their agents or privies from manufacturing, marketing or selling any HB12 Haemoglobin Syrup or Extra Virgin Cod Liver Oil bearing its registered trademark or any colourable imitation.

Delivering judgment in the matter, Justice Lewis-Allagoa held that the plaintiff successfully established ownership of both the HB12 Haemoglobin Syrup trademark and the proprietary design for Dr. Hommels Cod Liver Oil through documentary evidence.

The court reaffirmed that registration grants the proprietor exclusive rights to use a trademark in relation to the goods for which it is registered. Any unauthorised use of an identical or deceptively similar mark, the court held, entitles the proprietor to seek redress.

On the defendants’ claim that they had stopped production after being notified, the court held that the admission of suspension amounted to an acknowledgement that they had previously used the plaintiff’s trademark and design.

“The law is that facts admitted need no further proof,” the judge held, adding that subsequent suspension does not erase liability once infringement has occurred.

The court also noted that the defendants’ denial of key allegations amounted to a general traverse, which is insufficient in law where material facts are concerned.

Having found that the infringement was not effectively challenged, the court concluded that the plaintiff proved its case on the preponderance of evidence.

During the trial, the plaintiff tendered its trademark certificate, design acknowledgement letter, samples of its products and those of the defendants, as well as purchase receipts from a Lagos pharmaceutical store.

In their defence, Pasbrun Laboratories and Mr Okonkwo admitted receiving a letter dated October 7, 2023, from the plaintiff alleging infringement.

They, however, contended that upon receipt of the letter, they suspended production and marketing of the disputed products.

Defence counsel argued that the suspension shielded them from liability and described the alleged infringement as inadvertent.

It was submitted that where similar products emerge independently, similarity may occur without deliberate copying.

Counsel urged the court to rely on what he described as unchallenged evidence that production had ceased.

The plaintiff, on its part, maintained that it had discharged the burden of proof by tendering its registration certificates and demonstrating its exclusive rights under Section 5(1) and (2) of the Trade Marks Act.

Counsel argued that registration confers exclusive rights and that any unauthorised use of an identical or confusingly similar mark constitutes infringement.

M.C. Umeh of Norbert Ajaegbu & Co. appeared for the plaintiff, while Clement Akoka represented the first and second defendants.

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