A Nigerian, Mr Chianugo Peter, on Monday, disagreed with Google LLC, an American multinational technology company, over allegation that his 150 million dollars suit is frivolous and unmeritorious.
Peter, through his counsel, Emmanuel Ekpenyong Esq. of Fred-Young & Evans LP, told Justice Obiora Egwuatu of a Federal High Court, Abuja Division in his Reply to Google’s Statement of Defence.
It would be recalled that the company, in its Statement of Defence dated Nov. 9, 2023 and filed Nov. 10, 2023 by its lawyer, Mark Mordi, SAN, urged the court to dismiss Peter’s suit for being unmeritorious and unworthy.
Peter had sued GoDaddy.Com LLC and Google LLC as 1st and 2nd defendants over allegations bordering on the shutdown of his YouTubeAudio.com domain name after eight years of promotional and marketing works.
Google, in its defence, averred that Peter did not own the YOUTUBE trademark nor did he have a bona fide claim to use or register any mark that incorporates or is similar to the YOUTUBE trademark.
According to the company, the plaintiff was aware of his lack of bona fide claim because he approached it before he commenced operation “and acknowledged the 2nd defendant (Google)’s rights.
But in his response dated Feb. 7, 2024 but filed Feb. 8 2024, Peter argued that “though it is a common knowledge that Google owns the YouTube trademark, the plaintiff’s YouTubeAudio.com domain and business name is different and distinct from the YouTube trademark.”
According to him, the followers and users of YouTubeAudio.com know that it is different and distinct from YouTube and it is not calculated to deceive them.
He said the 1st and 2nd defendants, as well as the relevant regulatory authorities, acknowledged that his YouTubeAudio.com domain and business name is different and distinct from the YouTube trademark.
“The 1st defendant being a domain registrar who works hand in hand with the 2nd defendant, has been in the domain hosting business for more than 2 (two) decades and has a database of existing domain names and domain names likely to infringe existing domain names.
“Upon a compulsory search, the plaintiff lawfully purchased and acquired YouTubeAudio.com domain name from the 1st defendant without any caveat or objection that the domain name is similar or infringes the YouTube trademark or any of the 2nd defendant’s trademarks.
“The plaintiff approached the Corporate Affairs Commission (“CAC”) and upon conducting the compulsory search, reserved and registered YouTubeAudio.com as a business name for the plaintiff’s business without any caveat or objection that it is similar or infringes the YouTube trademark or any of the 2nd defendant’s trademarks.
“The plaintiff approached the Trademark, Patents and Designs Registry, Commercial Law Department, Federal Ministry of Industry, Trade And Investment, Abuja, Nigeria (“the Trademark Registry”) to register the YouTubeAudio.com trademark with logo No. 173554 in Class 16.
“And after the compulsory search, the Trademark Registry accepted the same for publication without any caveat that it is similar or infringes the YouTube trademark or any of the 2nd Defendant’s trademarks.
“The 2nd defendant only has exclusive right over its trademarks registered in Classes 9, 41, 38, 35, 42 as listed in Paragraphs 9.1 to 9.8 of its Statement of Defence.
“None of the 2nd defendant’s trademarks is registered in Class 16 where YouTubeAudio.com trademark and logo is accepted for registration before the Trademark Registry.
“In 2021, the plaintiff approached the 2nd defendant to hoist YouTubeAudio.com application as “YTAudio” and its website youtubeaudio.com on the 2nd defendant’s Google Playstore.
“And the 2nd defendant duly approved the name and the website and hoisted the same on its Google Playstore without any caveat or objection that it is similar or infringes the YouTube trademark or any of the 2nd defendant’s trademarks until 25th December 2023 when it unilaterally removed the plaintiff’s application on its Google Playstore in reaction to the plaintiff commencing this suit.
“Upon clicking the application on the 2nd defendant’s Google Playstore, users are seamlessly redirected to the website youtubeaudio.com which was duly approved by the 2nd defendant.
“The YouTubeAudio.com website functioned as the application’s engine room on the 2nd Defendant’s Google Playstore,” he said.
He said in 2021, Google also duly approved and registered YouTubeAudio.com on its Google AdSence program with publisher ID pub-4279408488674166 without any caveat or objection that YouTubeAudio.com infringed its YouTube trademark.
He said the 2nd defendant would not have registered the YouTubeAudio.com domain name on its Google AdSense and Google Playstore platforms in the first place if it infringed on its YouTube or other trademarks.
Upon resumed hearing on Monday, Ekpenyong informed the court that a Reply had been filed on Feb 8 2024 in response to the Statement of Defence and that Google has been served.
The court, then, regularised the plaintiff’s Reply to Google’s Statement of Defence.
The lawyer equally informed the court of their intention to amend their Statement of Claim and Writ of Summons.
Oluwaseyi Ogundiran Esq., who appeared for Google, responded that the plaintiff had just served on them the motion to amend their Writ of Summons and Statement of Claim on Friday last week.
She said the application was not ripe for hearing.
Justice Egwuatu subsequently adjourned the matter until April 18 for mention.
Recalled that GoDaddy.Com LLC, the 1st defendant, had neither been represented in court nor filed any application since the commencement of the case.
