COCHISE PLUS LTD VS SHIFUREN TRADING CO LTD
June 14, 2016
HIGH COURT
GHANA
CORAM
- HER LADYSHIP JUSTICE JANAPARE BARTELS-KODWO (MRS.)
Areas of Law
- Intellectual Property Law
- Commercial Law
- Tort Law
- Evidence Law
June 14, 2016
HIGH COURT
GHANA
CORAM
AI Generated Summary
Her Ladyship Justice Janapare Bartels-Kodwo of the Ghana High Court dismissed an action by a Ghana-incorporated importer of Cochise brand shoes seeking declaratory reliefs, seizure of goods, and GH¢200,000 in damages against a rival. The claimant alleged exclusive rights based on trademark registration in Class 25 and market goodwill, and produced an acknowledgment of acceptance and a later certificate indicating a registration date of 27 June 2011. The defendant, represented by Richard Nyarku, denied any registered rights existed at the time and pointed to Registrar correspondence requiring advertisement in the trademark journal and fee payment before issuing a certificate, which occurred on 20 January 2014. Focusing on Act 664, the court held that acceptance or approval did not amount to registration; publication and certification are prerequisites, so the plaintiff had no enforceable rights when it filed its writ on 14 October 2013. The third issue concerning import quantities was rendered moot, and judgment was entered for the defendant with GH¢10,000 costs.
By a writ of summons, the plaintiff claims for:
a) A declaration by the court that, having applied and registered the Cochise brand of shoes in class 25, it is the only company that has the legal right to import, distribute, or otherwise sell Cochise brand of shoes manufactured in China, which it imports to Ghana.
b) An order of the court to seize all the Cochise brand of shoes that the defendant has imported into Ghana from China since the right to import and sell Cochise brand of shoes has, by the Trade Mark registration, been invested in the plaintiff company.
c) A further order of the court compelling the defendant to pay an amount of GH¢200,000.00, being the loss of profit which the plaintiff was to get from the sale of Cochise shoes, which due to the defendant’s unlawful importation and sale of Cochise brand of shoes, the plaintiff could not get.
d) Any other relief that the court may deem fit.
e) Cost.
The plaintiff avers it is a foreign company fully owned by the plaintiff and has been incorporated under the laws of Ghana as a limited liability company and also been registered by the Ghana Investment Company in 2010. The plaintiff applied to the Trade Mark office at the Registrar General’s office, Accra, for the registration of the Trade Mark of COCHISE brand shoes in Ghana.
Pursuant to that objective, it applied in 2010 for the registration of the Trade Mark Cochise in Class 25; and this letter was acknowledged by the Registrar General’s office, Accra, on the 27th of June, 2011, whereby the office of the Registrar General wrote a letter accepting the plaintiff’s request for the registration of the said Trade Mark, and the office by the same letter approved the request for the registration.
It is the plaintiff’s case that it received very reliable information that the defendant company has flooded the Ghanaian market with the same brand of shoes, Cochise, though of inferior quality. The plaintiff asserts it set out to ascertain the veracity of the activities of the defendant company and therefore went to the market and on the 18th of September, 2013, bought one carton of the same brand of shoes, Cochise, from the defendant company.
With this evidence that the defendant company has imported into the country large quantities of Cochise brand of shoes to Ghana, the plaintiff states it instructed its lawyers to write to the defendant company on the 2nd of October, 2013. In the said letter, the plaintiff laid a legal claim to the Cochise brand