BY AISHA ABUBAKAR
The Federal High Court sitting in Ikoyi, Lagos State has given a landmark judgement in favour of Voda Paints Limited in a brand tussle between the company and Portland Paints & Products Nigeria Plc.
Both Voda Paints Limited and Portland Paints are industry leaders in Nigeria’s paint industry.
Portland Paints instituted the case with suit no: FHC/L/CS/1587/15 against Voda Paints Limited over brand dispute, claiming ownership of certain names in the paint industry such as ‘Tex’ and ‘Trowel’.
The Plaintiff, represented by Femi Fajolu of G.O. Sodipo & Co claimed that Portland Paints is the sole manufacturer of trowel paint in Nigeria and sought inter alia, to stop Voda Paints from manufacturing Trowel Paints.
But counsels to the defendant, Messrs Folarin Aluko and Damilola Amore, Partners in the Law Firm of Trumann Rockwood Solicitors faulted the claim.
They argued that the request of the Plaintiff is anti-competitive in the industry and that granting the exclusive right over a generic word to an individual or company would be injurious to the entire Paint Industry.
The counsels explained the demand of the Plaintiff is dangerous for Nigeria’s developing economy as it could create precedent for unscrupulous companies to pursue unfair monopolies against industry competition.
Justice Mojisola Olatoregun in her ruling in Lagos on Thursday, June 13, 2019, declared that ‘Tex’ and ‘Trowel’ are generic words in the Paint Industry and that no one company should be given exclusive use of these words
The judge ruled that the words cannot be subjected to the exclusive use of any company or individual.
The Court further found no similarity between the Plaintiff’s Sandtex Trowel and the Defendant’s Vodatex Trowel.
According to the ruling: “The question then is: can ‘Vodatex Trowel’ be mistaken for ‘Sandtex Trowel’ by the mere look and sound of the syllables?
“Can confusion arise, say in the course of a telephone conversation? Both are trowel paints. Are the two products confusingly similar to the extent of deceiving the Nigerian public?
“I have examined the case put forward by both parties. In my view, the average man can clearly see the difference between the two products.
“Looking at Exhibits B and C visually, you cannot see any similarity. Phonetically, ‘Sandtex’ appears to have 2 syllables- Sand-Tex while ‘Vodatex’ appears to have 3 syllables Vo-Da-Tex.
“The get up of the buckets are totally different. The educated and the illiterate should be able to see the difference. I do not find that any tangible conclusion can occur.”
Lead counsel to the respondent, Folarin Aluko who is the current Chairman of the Nigerian Bar Association, Abuja Branch and President of the Intellectual Property Lawyers Association hailed the decision of the court.