Court permits Nigerian to amend $150m case against Google, GoDaddy

Justice Obiora Egwuatu granted the application after the lawyer to Google LLC, Oluwaseyi Ogundiran of Aluko & Oyebode Law Firm, did not oppose Peter’s motion filed by his counsel, Emmanuel Ekpenyong of Fred-Young & Evans LP.

Upon resumed hearing, Ekpenyong who appeared with Joel Awoke and Jude Otakpor, informed the court that the suit was for mention. The lawyer said on the last adjourned date, the matter was adjourned until today for the hearing of the plaintiff’s application to amend his originating processes.

He informed the court that the defendants had not filed an opposition to his application dated February 7 but filed February 8. He applied to move the application subject to the convenience of the court.

Upon the court’s direction, Ekpenyong moved the application to amend his originating processes, including the writ of summons, statement of claim and witness statement on oath.

The judge, who granted the prayers to amend the processes, refused to grant a deeming order of the amended processes already filed and served on the defendants because it was against the settled principle of law.

Justice Egwuatu then directed the plaintiff to file its amended originating processes within seven days from the day the order was made and gave seven days to Google to file its amended statement of defence. The suit was consequently adjourned until June 3 2024 for further mention.

It would be recalled that the lawsuit revolves around the alleged shutdown of Peter’s YouTubeAudio.com domain name after eight years of promotional and marketing efforts.

Peter, through his lawyer, named GoDaddy.Com LLC and Google LLC as the 1st and 2nd defendants in the suit filed on April 14, 2023, with suit number: FHC/ABJ/CS/238/2023.

But Google, an American multinational technology company, in its statement of defence dated November 9, 2023, and filed November 10, 2023, by its lawyer, Mark Mordi, SAN, urged the court to dismiss Peter’s suit for being unmeritorious and unworthy.

The company, 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 reply dated February 7 but filed February 8, Peter contended that “though it is 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 are 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 the 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 the YouTubeAudio.com application as “YTAudio” and its website youtubeaudio.com on the 2nd defendant’s Google Play store.

“And the 2nd defendant duly approved the name and the website and hoisted the same on its Google Play store without any caveat or objection that it is similar or infringes the YouTube trademark or any of the 2nd defendant’s trademarks until 25 December 2023 when it unilaterally removed the plaintiff’s application on its Google Play store in reaction to the plaintiff commencing this suit.

“Upon clicking the application on the 2nd defendant’s Google Play store, 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 AdSense 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.

GoDaddy.Com LLC had neither been represented in court nor filed any application since the commencement of the case.