Damages – punitive, special and general damages;
Injunctions – preliminary and final injunctions restraining current and future acts of infringement;
Delivery up for destruction of infringing articles and items;
Account of profits; and
Costs of the action and solicitors’ fees.
Answer ... There is no provision for trademark dilution in the current Trade Marks Act. However, it may be inferred that the remedies attributed to trademark infringement will also apply to trademark dilution.
Answer ... In addition to an action for infringement, the Trade Marks Act implicitly recognises the right to maintain an action for passing off where an unregistered mark has been adopted or copied without permission (Section 3 of the Trade Marks Act).
Answer ... Parties must file their claims in the form of pleadings at the federal high court, along with the following documents:
- written witness statements on oath;
- copies of all documents to be relied on during trial; and
- a list of non-documentary exhibits.
Once pleadings have been exchanged by all parties to the action, the court will set a date for trial if there are no pending interlocutory applications which must first be determined.
Answer ... The following grounds of defence may be raised:
- bona fide use of a mark that is identical or similar to the registered trademark for a continuous period pre-dating the use or registration of the registered trademark by the registered owner;
- bona fide use by a person of his or her name or the name of his or her place of business, or that of his or her predecessor in title;
- bona fide description of the type or quality of the alleged infringer’s goods;
- non-registration and/or invalidity of the claimant’s trademark;
- absence of a likelihood of deception, where the streams of distribution or specifications of goods or services are distinct;
- permitted use, consent or acquiescence;
- fair use;
- honest concurrent use; and
abandonment or non-use of the trademark by the registered owner, or non-renewal by the owner.
Answer ... A decision of the Federal High Court may be appealed in the first instance to the Court of Appeal and thereafter to the Supreme Court. Appeals can be on points of law or facts, or a mix of facts and law. A notice of appeal setting out the grounds for appeal is filed at the lower court and the registrar of the court shall ensure the notice of appeal is served on the parties. The registrar of the lower court shall also compile and transmit the records of the suit or appeal to the appellate court. A respondent that intends to challenge the appeal must file a respondent’s notice of appeal or a cross-appeal, as the case may be; the parties will file their briefs of argument thereafter.