Facts
The 1st Appellant is the distributor of the “Tradition” brand of cigarette, manufactured by the Interested Party, in Nigeria. The 1st Respondent on the other hand is the distributor of the “Benson and Hedges” cigarette brand, manufactured by the 2nd Respondent. The Respondents instituted an action against the 1st – 3rd Appellants before the Federal High Court, in which they claimed that the colour “gold” in the packaging of the Tradition cigarette constituted part of the 2nd Respondent’s registered trademark on its “Benson and Hedges” cigarette brand and this infringed the Respondents’ exclusive right to the registered trademark.
The trial court in its judgement held that the colour “gold” constituted part of the 2nd Respondent’s registered trademarks No. 607222 and which by reason of long or extensive use of the “Benson and Hedges” gold coloured pack had also become distinctive or synonymous with the Benson and Hedges cigarette brand; and as the proprietors, their right to the exclusive use of the trademark had been infringed upon by the Appellants’ “Tradition” cigarette.
In an appeal filed against this decision at the Court of Appeal, the Court of Appeal affirmed the findings of the trial court. Dissatisfied, the Interested Party (Appellant), who did not participate in the proceedings before the trial court, appealed to the Supreme Court as an interested party, pursuant to the leave of court granted to it.
