On the 23rd of November, 2018, a Federal High Court sitting in the FCT, Abuja, held that an unregistered Association using an unregistered trade name cannot maintain an action for passing off against a duly registered association.
According to Court documents sighted by TheNigeriaLawyer, Suit No. FHC/ABJ/CS/746/2014, was filed by Professor Bankole Sodipo (on behalf of himself and all members of Intellectual Property Law Association of Nigeria) vs. The Registered Trustees of Intellectual Property Lawyers Association Nigeria and Another, in which the Plaintiff being an unregistered association, claimed that the 1st Defendant is illegally using the name “Intellectual Property Lawyers Association Nigeria” in contravention of the rights of the Plaintiff’s association protected under the common law of passing off.
In addressing the Court, Plaintiff’s Counsel argued that an unregistered association has a common law right of passing-off to restrain an Association registered under the Companies and Allied Matters Act from using a similar name.
In response to the Plaintiff, 1st Defendant’s Counsel, Mr. Folarin Aluko submitted that contrary to the contention of the Plaintiff’s counsel, the correct position of the law is that registration with the Corporate Affairs Commission under CAMA confers an Association with the elements of an adult member of society; a name, address, perpetual succession and so on.
Relying on the case of Emezi v. Osuagwa (2005), Tobiowo v. Disu (2008) inter alia, Mr. Aluko submitted that a natural person cannot bring a representative action on behalf of a zero; non-natural, non-legal entity.
Relying on S 30 (1) (a) and (b) of CAMA, 2nd Defendant’s Counsel submitted that an unregistered association lacks the legal capacity to sue a registered association for name similarity.
Delivering his ruling Justice B.O. Quadri held that “It is my humble view that whichever [way] one looks at the aforementioned issues, the plaintiff lacks the competence to bring this action against the 1st Defendant.
The Plaintiff counsel should be knowledgeable and abreast of the law governing the registration of associations under CAMA. They had sufficient time to register with the 2nd Defendant under Part C of CAMA. They slept on their right. This court lacks vires over this matter.
“It is therefore my considered view that “Intellectual Property Law Association of Nigeria” being an unregistered entity or association not recognized by any statute or legislation as a body cannot enjoy any legal capacity to sue on the basis of its long existence or public recognition.”
I therefore hold that “Intellectual Property Law Association of Nigeria being an unregistered association lacks the requisite competence to maintain an action for a claim of passing off against ‘Intellectual Property Lawyers Association Nigeria’.
The Intellectual Property Lawyers Association was established to promote the development and growth of Intellectual Property and Entertainment Law in Nigeria. Since its founding, the Association has prosecuted public interest law suits aimed at improving the jurisprudence and administration of intellectual property rights in Nigeria.
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