JUDGMENT

Hamid Sultan Abu Backer JC:

[1] This is my judgment in respect of the plaintiff's action against the defendants in respect of (a) infringement of copyright in its gutter (b) infringement of copyright in its packaging design (c) passing off in relation to the gutter. The 2nd defendant in this case is not represented by solicitors.

Basic Facts

[2] The plaintiff says they are owners of copyright in a rain gutter system namely F300, which consists of rain gutters and gutter fittings. They complained that the 1st defendant acting under the direction and control of the 2nd and 3rd defendants have infringed their copyright by selling the 1st defendant's gutter known as Middy Rain Gutters which they say is confusingly similar to their gutter design.

[3] In addition the plaintiff says that the defendants have infringed on their packaging design of their gutters sold under the Rainwater system label. They complain that the 1st defendant under the direction and control of the 2nd and 3rd defendants have infringed on the copyright of the plaintiff selling their gutters in similar packaging design known as Middy Packaging.

[4] Thirdly the plaintiff complaint that the defendants had committed the tort of passing off by selling the gutters by use of similar design features of the plaintiff. The defendants deny the allegation and say (a) the plaintiff is not the copyright owner of the gutter; (b) the plaintiff is not the copyright owner of the packaging design; (c) the design of the gutter is not appropriate subject matter for a claim in passing off; (d) the plaintiff has not established by evidence the distinctiveness of its gutter and all other legal requisites for purposes of passing off; (e) the plaintiff has not established likelihood or probability of confusion to support its case for passing off; (f) the defendants did not infringe on the copyright of the plaintiff's gutter, its copyright in the packaging design nor have they passed off the gutter as and for the gutter of the plaintiff; (g) there is no pleaded case against the third defendant.

[5] In addition, the defendants say that the 1st defendant is the registered owner of its rain gutter design 372. In suit No. D1-25-10-2002 the plaintiff attempted to expunge the said design but failed. On appeal to the court of appeal by the plaintiff was not successful. And now the plaintiff is seeking leave from the Federal Court to appeal.

Preliminaries

[6] Three witnesses gave evidence for the plaintiff and five for the defendants. It is clear from the pleadings that the plaintiff is not accusing the 2nd and 3rd defendants for infringement or passing off, and in consequence they cannot claim for damages against the 2nd and 3rd per se unless the exception applies. The statutory declaration affirmed by the plaintiff on 30 December 2002 to claim copyright for matters related to the year 1970 or so can only be seen to be self serving and one having no probative value in law on the facts of the case.

In addition the legal burden is on the plaintiff to establish in law that they have copyright in the gutter as will as the packaging design. And the action for passing off may become illusory in the event they cannot establish copyright taking into consideration that the 1st defendant's gutter is a registered design and taking into consideration some of the valid defences raised by the defendants which stand unrebutted.

[7] I have heard the evidence, read the documents, exhibits, submissions etc in detail. The parties have dealt with the issues in detail. It will serve no useful purpose in repeating the evidence or submission in detail when the law is settled. I take the view the plaintiff's claim must be dismissed. My reasons inter alia are as follows:

(a) The plaintiff alleges that they are the owners of the copyright in respect of the gutter. However, no evidence was adduced to establish in law that they are the actual copyright owner. In the instant case evidence was given to