Trademark: NBC brought before Federal High Court, Lagos over alleged passing off infringement

The disputed products.

By Editor, (Business & Brands Marketing).

Nigeria Bottling Company (NBC) has been dragged before a Federal High Court, Lagos to explain why it is allegedly infringing with its Predator energy drink similar with an insignia of an already existing product, Fearless, made by Rite Foods Limited, which claims to be the market leader in energy drink production.

In a publication in the ThisDay and Guardian newspapers editions of Friday, 19th of March, 2021, court forms initiating contempt proceedings against the managing director of NBC were published in respect of injunctions granted by the Federal High Court, Ikoyi, Lagos against NBC.

In the suit No. FHC/L/CS/92/2021, the plaintiff, Rite Foods Limited, had filed a motion ex parte for interim injunction against the defendant, NBC, restraining it from further promoting or using any sales promotion material for its Predator energy drink in a manner that infringes or passes off or that is capable of infringing or passing off the plaintiff’s Fearless energy drink, until the interlocutory application for injunction is determined.

The alleged infringement negates the common law property right in the goodwill of “Fearless” energy drinks and Trade Marks Act, Cap T 13, Laws of the Federation of Nigeria 2004, which offers exclusive rights to get ups and designs of products already in use by a proprietor.

Investigation reveals that the Plaintiff, Rite Foods’ Fearless energy drinks, which consist of the Red Berry and Classic brands, were launched into the Nigerian market on June 15 and 16, 2017, respectively, and has gained a wider market share before the NBC’s Predator brand which made entrance in June, 2020.

This points out that the trademark has been in use by the Rite Foods’ brands before NBC’s Predator drink was launched into the market.

According to the Plaintiff, it owns the exclusive right to the get up which has been a mark of identifying its market leading Fearless energy drink brands.

It posits that with the infringement by NBC, consumers are likely to assume (mistakenly) that the aforementioned energy drinks in the case are from one source.

According to the company, the degree of similarity between the lion symbol on its Fearless brands and the NBC’s Predator energy drink is high, and that since both compete in the same market spectrum, the mark is likely to cause confusion in the minds of consumers, about the source or sponsorship of the brands offered under the defendant’s mark.

Further proceedings for the case at the Federal High Court are slated for March 24, 2021.

However, while the Predator brand is struggling to gain acceptance among consumers, Rite Foods’ Fearless energy brands have attained a very high market share of the lucrative beverage market, cutting across the different demographics, mainly the youth segment.

The Fearless brands provide consumers limitless benefits and contain high quality ingredients.

The energy drinks contain Vitamin B6, a water-soluble nutrient that is part of the vitamin B family, which supports adrenal function, helps calm and maintain a healthy nervous system, and are necessary for key metabolic processes.  Also, included is Vitamin B12 which is essential for building blood cells and maintaining healthy nerve cells in the body.

Few cases of trademark infringements in the country were those of Nabisco Inc., v Allied Biscuits Company Limited in 1998, where the trademark RITZ was the issue before the court.

Allied Biscuits first registered the mark eight months before Nabisco, and the court held against the appellant, Nabisco, on the ground that it has not used the mark sufficiently to acquire a reputation for the mark in Nigeria, that its intention is to destabilise the Nigerian market and her economy.

Also on October, 18, 1993, Pfizer dragged Iyke Merchandise to Court for infringing on its trademark, Combatrin Plus, with the mark, Combatinrein, which was likely to confuse consumers.

The plaintiff’s (Pfizer) action for injunction, order of delivery up for destruction of the infringing product (Combatinrein) and general damages succeeded before the court.