This dispute arose when the first appellant attempted to register the trademark “Japs Fried Chicken…De Best Taste Around!” and device on 12 February 2010. The respondent objected to the first appellant’s application on the ground that that he was the owner of a common law or unregistered trademark, namely, “Japs Fried Chicken”. At a hearing at the IPO on 18 June 2014, the Deputy Registrar ruled that the company’s application was stayed until the right to the use of the trademark was determined by the High Court.
This appeal case arose from a decision of the High Court dated 28 July 2016 in which the court determined that the respondent and the second appellant had the joint right to the trademark “Japs”, while denying the application for trademark registration by the respondent. The second appellant (the first appellant’s mother) died before the delivery of the judgment, and the first appellant’s application to represent her estate was granted.
The basis of this appeal relates to the facts of the case, notably the inference of facts that were drawn by the trial judge. The lower court relied heavily on the statement of case, witness statements and oral testimony to confirm the credibility of the witnesses but made no commentary in the judgment about the truthfulness of any of the evidence. The appeal court found this approach to be flawed.
The appeal court was of the view that the respondent had no interest in the business for 25 years and as such played no role in the development of the company’s goodwill. Further, he carried out no business under the name “Japs Fried Chicken” and had abandoned the use of the name. The Court therefore found that the trial judge should not have refused the first appellant’s application to register the trademark “Japs friend Chicken”. The Court relied on the case of Star Industrial v Yap Kwee Kor [1976] FSR 256 and on s. 35 of the Trade Marks Act (the Act) in coming to the conclusion that the mark was abandoned.
It was decided that the first appellant was the sole proprietor of the trademark “Japs Fried Chicken” and an order was made directing the registrar of the Trinidad and Tobago Intellectual Property Office (TTIPO) to register the mark in the first appellant’s name o and to refuse the application of the respondent as the business was not jointly held.
Cases referred (non-exhaustive list):
Star Industrial v Yap Kwee Kor [1976] FSR 256