This is an informal case summary prepared for the purposes of facilitating exchange during the 2022 WIPO IP Judges Forum.
Session 4: Provisional Measures in IP Disputes (Part I)
Court of Appeal, Ilorin Judicial Division, Nigeria [2015]: Gallaher Ltd. v British American Tobacco (Nig.) Ltd & Ors 13 NWLR (PART 1476) 325/ (2014) LPELR-24333 (CA)
Date of judgment: December 19, 2014
Issuing authority: Court of Appeal, Ilorin Judicial Division
Level of the issuing authority: Appellate instance
Subject matter: Enforcement of IP and Related Laws, trademarks
Plaintiff: 1. Gallaher Ltd, 2. Habanera Limited (appellants)
Defendant: 1. British American Tobacco (Nig.) Ltd, 2. Benson & Hedges (Overseas) Ltd, 3. International Tobacco Company Plc (respondents)
Keywords: Provisional measures, ex parte injunction, interim injunction, Anton Piller injunction, equitable remedy
Basic facts: The 1st and 2nd Respondents alleged that they have registered as a trademark, the design and color of the packaging in which their Benson & Hedges cigarettes are being sold. The 1st and 2nd Respondents filed a motion ex parte praying the trial court, Federal High Court, Ilorin Division, seeking inter alia orders of interim injunction and Anton Piller order against the 3rd Respondent
The trial court granted the orders with some slight variations. After the granting of the ex parte orders, the Appellants applied to be joined as Defendants, and were joined by order of court. Subsequently, the Appellants filed a notice of motion by which they prayed for the discharge of the orders made by the trial court, on the ground that there was presumption of liability for trademark infringement and passing off, and that the description in the decision was judgmental. The trial court dismissed the application in its totality.
The following issues were resolved in the appeal:
- Whether it is correct to define a class or persons being sued in terms presuming their liability for the claims made against them;
- The grounds on which an ex parte injunction may be discharged;
- Whether the Respondents failed to disclose any material facts to the court at the time they moved the court ex parte to grant the orders of interim injunction;
- Whether an Anton Piller Order ought to have been made by the lower court against unidentified persons and premises;
- Whether the person against whom the trial court made the orders compelling them to disclose certain facts can be rightly compelled to disclose those facts.
Held: The Court of Appeal ordered the ruling of the trial court to be reversed, and the ex parte interim injunction and Anton Piller order to be set aside, for the fact that the 1st and 2nd
Respondents sought and obtained these orders without disclosing material facts to the trial court.