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AMERICAN CYANAMID COMPANY V. VITALITY PHARMACEUTICALS LTD.

(1991) JELR 42035 (SC)

Supreme Court  •  SC.12/1989  •  8 Feb 1991  •  Nigeria

Coram
MOHAMMED BELLO JSC; ADOLPHUS GODWIN KARIBI-WHYTE JSC; SAIDU KAWU JSC; SALIHU MODIBBO ALFA BELGORE JSC; OLAJIDE OLATAWURA JSC;

Judgement

O. OLATAWURA, J.S.C. (Delivering the Leading Judgment): The competing claims of the parties in this appeal relate to the registration of a trade mark about one antibiotic registered by the appellant under the trade mark of GONOCIN as against the respondent which had its own registered as GONORCIN. Prima facie quite apart from the claim of infringement of the trade mark one is likely to be misled that it is also a passing off action. But their claim and counter-claim leave no one in doubt that priority of registration and continuous use claimed by the respondent played a dominant role in their claims.

There were originally two plaintiffs which filed the action in the Federal High Court of the Lagos Judicial Division against two defendants. After amendment of the Statement of Claim, the claims read as follows:-

"1. An injunction restraining the defendants their servants and agents from infringing the plaintiffs registered Trade Mark "GONOCIN"

2. Delivery up on oath for destruction of al…

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