Appeal court sets aside ruling of lower court over ownership of trademark
An Appeal Court in Lagos has set aside the decision of the lower court that removed the right of FAPA Company Ltd as the owner of the registered trademark of Qlink.
The Appeal Court also ordered that the case, which is between FAPA Company Ltd and Ocean Waves Corporation Limited be remitted to the Federal High Court for hearing de novo by any other judge assigned by the Chief Judge of the Federal High Court.
Justice Ugochukwu A. Ogakwu of the Appeal Court gave this order following an appeal by FAPA, a manufacturer of household appliances, against the decision of the lower court, which had removed their rights to their alleged registered trademark, Qlink.
In 2014, Ocean Waves Ltd had emerged with a claim that they were the rightful owners of the Qlink Trademark and they sued the Registrar of Trademarks and sought an Order of the Court, demanding that FAPA’s registration be expunged, to enable Ocean Waves to insert its name in the registry as owners of the Qlink trademark.
The Order would allow Ocean Waves Ltd to register the trademark and thus, impound and prevent the sale of all existing goods registered under the trademark i.e Qlink branded products.
Justice Okon Abang of the Federal High Court ruled in favour of Ocean Waves. As a result, FAPA filed a fresh action in the Federal High Court, against Ocean Waves and the Registrar of Trademarks, asking the Court to overturn the Judgment given by Justice Abang.
The new case was assigned to justice John Tsoho, where FAPA argued that the previous Judgment by Justice Abang was a nullity, because FAPA was not made party to the suit, and yet, judgment which directly and adversely affected the company was made, amounting to a breach of its constitutional rights to a fair hearing.
After an extensive argument, Justice Tsoho dismissed the suit, on the grounds that he had no power to set aside the ruling of a fellow judge in the same court.
Therefore, FAPA through its counsel in Ajumogobia & Okeke filed an appeal on February 6th 2017 at the Court of Appeal against the judgment of Justice Tsoho. Subsequently, the Court of Appeal declared that Justice Tsoho has the power to have over-ruled the judgment of Justice Abang and furthermore, that the judgment given by him was indeed null and void as FAPA’s constitutional right to fear hearing was not respected.
The entire matter of the trademark ownership of Qlink was then ordered to be remitted back to the Chief Judge of the Federal High Court to be reassigned to a new judge for further trial.
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