Galina Blanca S.A v T. Choithram (SL LTD) (CIV APP 52 of 1983) [1988] SLCA 1 (14 July 1988)

Jo. csylepp. 52/88 BA

IN we COURT OF APPEAL FOR STERRA IBONB ; So Sisaeticmrmabeteds ( caenbien 5808 HON.MR.JUSTICE D.E.N.VILLIANS — ~ JUSTICE OP APPEAL 18B HOUUR.JUSTICE G.GELAGA KING JUSTICE OF APPEAL BIER: an . GAULINA BLANOK S.A. - APPELLANT xD ‘T.CHOLIHRANS & SONS (S.%.) LAD - RESPONDENTS BsGeJehompson Bsqs, for the Appellant ’ Bavard J.akar,Beq., for the Respondents suvonmne periveen me 14"pay oF 1988. tL WIELIMNS J.A.:- Taie iv on eppeol against the Julgnent of : ‘Tompson-Davice Judge (as he then was) delivered on the 4th day of July,1965 in the High Court of Sierra Leone. The grounds of the appeal are:. 1. that the Learned trial Judge misdirected himself in law dy holding that the Courts vill alvays protect persons or businesses against danage to their goodwill only where ‘there va real and tangible danger of confusion of the rade Wark or indicia complained of

2. That the Learned rial Judge erred in law an failing to direct hinself that in a cage of Passing Off, it is sufficiont as the facts shov, to show that a substential number of persons Likely to become purchasers of the goods are Liable to be deceived by the Defendant's use of the rnane of the goods complained of

3. That the Learned triel Judge wrongfully conceived the law by héléing thet to believe that a reputation hes attached to the Plaintitfe by use of the name the infringement of hich io complained of, the Flointitfe must be known in this : country. i 4 tat the decision 29 agsinst the walght ofthe eridences | 5. hat the bearnod "rial Judge misdirected himself on the 2 aw Uy failing to advert his mind to an important principle of law in this type of cage, thet if the goods of @ manutacturer have become Imown in the market by a particular hune, tho adoption by © rival trader of awy mark which will cause hin goods to bear the seme name in the market, may tw a much = violation of the rights of that rival as the) b. “hub lie earned rin) Judge misdirected himself by failing

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ay plese to evaluate properly or at all a vitel plece of evidence to wit = thet Pid at pave 25 Lines 1-20 of the Kedords th when she asked Defendent/zespondent for a packet of Jumbo cubee that they instead sold’to her a packet of . Chanbo cubes and represented thet Jumbo cubes and Chanbo gubes were’one ood the sens producti ‘oe Reiefe sought trom this court sre: (a) Thet the Judenent obtained on the 4th dey of July,1983 be eet anide, , (») thet Judguent be entered for the Appellant (c) that the costs of the Action hérein and below be bore : by the Respondent. pg ian: 1st te pga, Crate die on ae awk refevred to page 37 lines 5-9 of the records of the case and submitted thet what is contained therein-is an oversimplification of the lev. Lines 5:9 of the rocords road as tetlows: * tue courts will elvays protect persons or businesses “ agoinst Ye 1ikelthood of donege to ite goodwill, but * wid omy’ do oo where thare wae Teal and tangible danger " of coefusion arising by the use of the mark or indicia 1 oonpleined of, even in the abuenoe of evidence of sotadl Gouneel then refe-red to the case of Reddaway vs Banham 1896: App.Cesne

199. Ke referved 12 to the Hondnote ‘of the case of R.cholthren # Jone va.2.Cnotthran & Sons (1964/66) AIRSL ee 253 at p.257 ro principle of lew. Counsel then oubnitted that Le nobody has any right to represent his goods as the goods of i seneboty viee, lie referred to the evidence of Kadiatu Koroma vo testified en 2-WeA at the trials Oomeel for the appellant cmt tet further Minat a quiak gissoe Stcba: prampecs AF ths * reowsctive products leaves one with the drrertatible motive that Uhe rempondent intended to “8 off their znods as thave

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Poesne up hie arguaent in Growé 1, Counsel for the snnellont sheitted thet the eemet= wi] gnamemt g tmator fren adopting o tuete mari secombing Hot of a ninety that cxPisony gusslasompoummhacing wih wet? omtice cas ékely sf to be mislegds. So hie cucmsat fr crown 2, Counsel for the Deeldant referse? te the orcs ot Noman Fer Ad ve OMhong Brace 143 (1969! 4 .2.".6%5, Me referred to the records end submitted thet the termed nial Jutge has not applied hie wind to the nw appterhi: to hia type of oases. - Desting vith eroond 3 of the nppenl, Counce tor the ‘eppellant stated that St hon newer boon the state of the Law as stnted at page 37 that the plainti+? mnt be know in thse comtry. It ie the product Jumbo euhes that should be mown i $1 this comtry Counsel streseed. "a then referred to the cure of TMAMERROLO™! COY ve WUERTOAN Tem CONE COY JA tnglioh Nem (iute) 1495; sien to the case of Draper ve Betet (1939) 5 AeMe?.513. Counre? tor the apr~“ant reunding vy his ermment, told the court with regard to grounds 4,5, | |” sow 6, thet he woe aforting his anrunents and’ submisaions on the otier zrowida, Xepiying, Counsel for the respondents submitted thet with rogarc to whet is contained in lines 5-9 ot vege 37 of the records , the ienmed trial Judge stated | te rover aaws Me contunded thn the keddnway case is not egplicable to this avpeel. He then emphasized that the respondents «re not the mervfseturers of Chambo cubes and also $ not tre sole importers und disteiimtors of that product. They ave trsdeng selling 92 types of goods he re~enphasized. ouassl Zor re reavoadents subsitted also thot the. subject a or in ske Choithram ve Choi thman ease oited by Counsel che apyet lant van, Nene cf the firm and not products sold. (ket we court to Loves the uitneus Kediaty Korona ae sowie » end AndAccersnt pinwon. we highlighted thot kadiata x yom devosed tm the court below thit ehe had boon buying bo ooo for more Shen to Yeare, Counsel Yor the respond ‘ov0a to tho Liovmin Kerk onse previously

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reterced to by Counsel for the appellant and in particular to 7 the second paregraph at page 384 and the last paragraph at wave

392. He referred alvo to Keletury's Laws of lngland 3rd + Paision Volume 36 paragraph 1011 ve class of persons 1ikely to be confuseds, He then refevrea to the evidence of one Saad im the court below who, be submitted, had told the court below that the products were different. He atated also thet the res pendent solé both. products but asd not pags off one for the other, se submitted also tat the wrappers of the respective - products are different. Re the cage of Seixo vg Frovesende eited by Counsel for the aypellant, Counsel for the respondents submitted thet thet case 4¢ not ayplicable to this appeal. He : chalienged thet the Vorman Aerk case rather supports the res ponsent's case. Mle subeitted also thot there were two manufac tuvere in she Leatheretoth ease cited by Counael for the we appellant} digo that the Draper ve Trigt case vas for assessuent of demares only. Roun‘ing wp, Counsel for the reayondents sub mitted taut twine Se ao aun of Juabe cubes put on Chanbo « He suboittos also vhet resemblunce 4g a question of fact for the Judge to decide, he referred to the case of Kichae) Aboud & Sone ve Peo Gee (Panta Stores)(1970/71) AIRSE 125 and submitted thot there was mo pageing off by the respondents av \ complained of by te apvellsnt. The respondents merely gave the buying public a choice which 4s not passing off counsel envhanized. Gn thet note he asied this court to aignise the . apogee with costs. In hie Sims) reply, Counsel for the appellant invited tin court to Lock et the Idichael Aboud ease and cubsitted that a im that case, bot partive were traders. He subaitted further Leb iw ease Bf YeChotvnnen ve Cyprus ines (1950/56) AIRSL si dues wot apply to tie case. He then asked thie court to io tor the snpediant ené grant the reliefe sought. > vw: Comndation and nature of on action for passing off , oy the following dezinition and principles of ev:

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