Purpose of Trade Mark and Whether registeration of a trademark is prima facie evidence of its validity  

 

Manuel Akinshola
Joined: 2 years ago
Posts: 183
19/04/2018 10:52 am  

Whether registeration of a trademark is prima facie evidence of its validity and the purpose of trademark

"Section 49 of the Trade mark Act presupposes that the Registered Trade Mark is valid.

Section 49 provides that in all legal proceedings, the fact that a person is registered as proprietor of the trade mark shall be prima facie evidence of the validity of original trade.

What then is a Trade Mark? The Trade Mark Act under section 67 of the interpretation section of the Act defines a Trade Mark: "trade mark" means, except in relation to a certification trade mark, a mark used or proposed to be used in relation to goods for the purpose of indicating, or so as to indicate, a connection in the course of trade between the goods and some person having the right either as proprietor or as registered user to use the mark, whether with or without any indication of the identity of that person, and means, in relation to a certification trade mark, a mark registered or deemed to have been registered under section 43 of this Act:

The Supreme Court in FEREDO LTD. V. IBETO IND. LTD. 2004 5 NWLR (Pt. 866) SC 317 ascribes the following meaning to a Trade Mark as follows: "a mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate, a connection in the course of trade between the goods and some person having the right either as a proprietor or a registered user to use the mark"

The purpose of a Trade mark is to give an indication to the intending purchaser as to the manufacture and quality of the goods to be sold, to indicate by their appearance the trade source or trade hands through which they have reached the market.

It is a distinctive picture which indicates to a purchaser of a good the means of getting the same article in future.

Once a trade mark's registration is valid it gives the proprietor the exclusive right to use the trade mark in marketing or selling this goods, and without his consent if anyone else uses an identical mark or one so nearly resembling it as to be likely to deceive or cause confusion, this will entitle the proprietor to sue for infringement of trade mark. See FERODO LTD. V. IBETO IND. LTD supra.

Therefore the Registration of a trade mark under Part A & B of the Trade Mark Act once valid gives to the registered proprietor of the trade mark the exclusive right to the use of the trade mark in relation to the goods in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by the Act.

This exclusive right conferred under section 5(1) is subject to any conditions and limitations to which the registration is subjected."

 

Per NWODO, J.C.A. in VIRGIN ENT. LTD. v. MOHAMMED (2009) 12 NWLR (Pt. 1151) 136 C.A.


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