The Supreme Court has started laying the groundwork for a significant debate on whether or not the Commercial Court is prohibited from exercising jurisdiction over matters on which a government agency has original jurisdiction.
Judge Chan-Chan Paegar on August 5 ruled that in keeping with the law the Liberia Industrial Property Office has original jurisdiction over the trademark infringement case brought against Housseni Kessell, a Lebanese businessman and owner of HK Enterprise in 2014 by BAF Trading Corporation.
BAF had earlier sought Judge Paegar’s approval to declare its legitimate rights to a trademark certificate for pop drink the corporation obtained from the Liberia Industrial Property Office (LIPO) in 2010 for 10 years – which the judge rejected.
“The administration of all matters relating to the issuance, revocation and safeguarding of industrial marks and patents devolves on the LIPO, and as such, this administrative agency by law has original jurisdiction over and in all such matters,” Paegar’s final judgment said.
In response to the Supreme Court taking up the case, Cllr. Tiawan Gongloe, lead lawyer of BAF, said in a complaint statement that Judge Paegar committed a reversible error in judgment that cast a negative image on the court.
“You committed a reversible error when you based your final judgment on the issue of jurisdiction when the law and practice in this jurisdiction, except for subject matter jurisdiction, is to deal with the issue of jurisdiction as a pre-trial matter and not as a post-trial matter,” Cllr Gongloe stated.
The statement accused Judge Paegar of ignoring the testimony of a LIPO employee, who admitted that “the trademark certificate of HK Enterprise was inadvertently done by LIPO,” during a period the employee claimed the registrar supervising the registry spearheaded the registration procedure.
The statement also said, “It was a reversible error for Judge Paegar in the face of such clear admission that the registration of the trademark for HK Enterprise was a mistake” for him to deny the petition and dismiss it.
The document also quoted one Moses Nyanfor who when he was subpoenaed (compelled) for his testimony said, “The information regarding the trademark registration of HK Enterprises was not in the database of LIPO and that the said database contained information on the trademark registration for pop drink by BAF.”
The statement also said Judge Paegar committed a reversible error when he ignored provisions of the Liberia Industrial Property Act, which say, “that a trademark is valid for ten (10) consecutive years and BAF trademark for pop drink was only registered in 2010, and HK Enterprise registered the trademark for the same product in 2014 while BAF trademark registration was still in effect.”
“The Court’s review is necessary to ensure the legal interpretation of a constitutional matter of which Judge Paegar avoided and instead applied an outdated definition that conflicts with the prevailing circumstance,” Cllr. Gongloe said.