Tex And Trowel Are Generic Terms, No Company Has Exclusive Use Of Them, Court Holds – TheNigerialawyer

A Federal High Court sitting in Ikoyi, Lagos, on Thursday, June
13, 2019, delivered judgment in suit no FHC/L/CS/1587/15 between
Portland Paints & Products Nigeria Plc (the Plaintiff) and Voda
Paints Limited (the Defendant).

‎Delivering the landmark judgment in favour of the Defendant,
Justice Olatoregun held inter alia, that the words ‘Tex’ and
‘Trowel’ are generic words used in the Paints Industry, and that no
one company should be given exclusive use of these words that
cannot be subjected to the exclusive use of any company or
individual. The Court further found no similarity between the
Plaintiff’s Sandtex Trowel and the Defendant’s Vodatex Trowel.

According to the Court

“The question then is: can ‘Vodatex Trowel’ be mistaken for
‘Sandtex Trowel’ by the mere look and sound of the syllables? Can
confusion arise, say in the course of a telephone conversation?
Both are trowel paints. Are the two products confusingly similar to
the extent of deceiving the Nigerian public? I have examined the
case put forward by both parties. In my view, the average man can
clearly see the difference between the two products. Looking at
Exhibits B and C visually, you cannot see any similarity.
Phonetically, ‘Sandtex’ appears to have 2 syllables- Sand-Tex while
‘Vodatex’ appears to have 3 syllables Vo-Da-Tex. The get up of the
buckets are totally different. The educated and the illiterate
should be able to see the difference. I do not find that any
tangible conclusion can occur.”

‎Nairalaw had earlier reported that the Plaintiff was
represented by Femi Fajolu, Esq of G.O. Sodipo & Co while the
Defendant was represented by Messrs Folarin Aluko and Damilola
Amore, Partners in the Law Firm of Trumann Rockwood Solicitors. Mr
Folarin Aluko is the current Chairman of the Nigerian Bar
Association, Abuja Branch and President of the Intellectual
Property Lawyers Association.

In the case, the Plaintiff claimed to be the sole manufacturer
of trowel paint in Nigeria, and sought inter alia, to stop the
Defendant from manufacturing Trowel Paints. On their part, the
Defendant’s Counsel argued that the Plaintiff’s requests are
anti-competitive. The Defendant’s Lawyers argued that granting the
exclusive right over a generic word to an individual or company
would be injurious to the entire Paint Industry and to Nigeria’s
developing economy, creating a precedent for unscrupulous companies
to pursue unfair monopolies against industry competition.

‎Both Voda Paints Limited and Portland Paints & Products
Nigeria are industry leaders in Nigeria’s paint industry. This
decision will ensure that other companies in the Nigerian Paint
Industry can continue to manufacture and market trowel paints.

Portland Paints, a subsidiary of UAC Nigeria, has undergone
significant restructuring in recent times. Boardroom mogul, Mr.
Larry Ettah resigned from the Board of Directors, effective July 20,
2018, following suit, Mr. Abdul Bello resigned from the board
effective December 31, 2018, while Mr. Mukhtar Yakasai resigned
effective January 31, 2019.