BY Jude-Ken Ojinnaka
Tashibo International Limited, a company registered with the National Agency for Food and Drug Administration and Control Agency (NAFDAC), engaged in the importation and distribution of brand of candy known as ‘Cola Rola’ has slammed a N550 million suit against ‘The Coca Cola Company’ and Nigerian Bottling Company Limited as damages for unlawful interference with the Plaintiff’s business.
The parties in suit No FHC/L/CS/1230/23 are Tashibo International Limited as plaintiff while The Coca Cola Company and Nigerian Bottling Company Limited are 1st and 2nd defendants respectively.
The plaintiff filed its amended Statement of Claim signed and dated February 1st, 2024, by its counsel Nnamdi B. A. Mofunanya on February 12 before Justice Chukwujekwu Aneke of the Federal High Court sitting in Lagos.
When the case was called for trial on Monday, counsel to the Plaintiff, Nnamdi B.A. Mofunanya told the court that he has application seeking to amend his client’s Statement of Claim, adding that same has been served to the defendants. He sought the court’s permission to move the application.
Counsel to the defendants Mr D.C Ohajionu confirmed receipt of the application from the plaintiff and had no objection to moving the application.
The judge after listening to the application as moved by the Plaintiff’s counsel, perused the amended Statement of Claim, witness Statement on Oath, affidavit in support of the application and said; “The plaintiff’s /applicant’s application for amendment of Statement of Claim is hereby granted as prayed”.
In its amended Statement of Claim, the plaintiff claims against the defendants jointly and severally as follows:
“A declaration that the Plaintiff’s “COLA ROLA” brand of candy does not constitute an infringement of the Defendants’ “COCA COLA” trademark for bottled drinks.
“A declaration that the Plaintiff, by the sales or promotion of its “COLA ROLA” brand of candy has not in any manner whatsoever passed-off its goods as that of the defendants.
“General damages of N550, 000,000 for the unlawful interference with the Plaintiff’s business.”
“A perpetual injunction restraining the defendants from doing the following acts;
*Pursuing any conduct which amounts to harassment, molestation and/or intimidation of the plaintiff, its distributors or any of its customers on account of the sales, marketing, distribution and/or promotion of the Plaintiff’s “COLA ROLA” brand of candy
*Interfering in any manner whatsoever and howsoever with the Plaintiff’s business as it pertains to the importation, sales, distribution, promotion and/or marketing of the “COLA ROLA”brand of candy.
*Threatening arrests and/or actual arrest of officers of the Plaintiff’s, its distributors, agents, privies, and sales representatives on the grounds that the Plaintiff’s “COLA ROLA” brand of candy constitutes an infringement of the Defendants’ “COCA COLA” trademark for bottled drinks.
*Threatening confiscation and/or actual confiscation of the Plaintiff’s “COLA ROLA” brand of candies to be found anywhere in Nigeria on account that it constitutes an infringement of the Defendants’ “COCA COLA” trademark for bottled drinks.
Stating the facts of its claim, Tashibo International Limited states that it is a company incorporated in Nigeria with its Head Office at No 2 Okpofe Street, Ajao Estate Lagos while the 1st December is a company incorporated under the laws of the United States of America and with Head Office at No 1 Coca-Cola Plaza, S.E. Atlanta G.A 30313(404)676-212.
It avers that the 2nd defendant is a company incorporated in Nigeria with the sole franchise to bottle and sell products of The Coca-Cola company in Nigeria, including the “COCA COLA” bottled drinks.
According to the plaintiff, it imports and distributes “COLA ROLA” brand of candy by virtue of its agreement and collaboration with its Indian Technical Partner ‘Nyra Chocolates Private Limited’.
The plaintiff avers that it has over the past three years spent tremendous amounts of money marketing and promoting the sales of ‘COLA ROLA’ brand of candy , adding that the product has become a candy of choice among school children who are the target consumers/market nation wide due to its great quality.
The Plaintiff avers that it was surprised when in late 2022, it received information from its distributors and marketers of COLA ROLA brand of candy that they were being harassed, molested, intimidated and harangued by officers and agents of the defendants on the grounds that the Plaintiff’s COLA ROLA’ brand of candy mimics the Defendants’ trademark COCA COLA used for the defendants’ bottled drinks.
It however asked its distributors and marketers to ignore the harassment as they were empty gimmicks applied by other candy manufacturers. The plaintiff states that it further received reports from its distributors and marketers on or about June 15, 2023, complaining of further harassment, molestation, intimidation and threats of confiscation of COCA ROLA’ candies as well as personal arrests by the officers and agents of the defendants.
Having investigated and confirmed the reports, and while the plaintiff considered a formal report to the Police and various market chairmen, the defendants’ harassment and intimidation escalated and got to its peak on June 20, 2023 when the defendants through its solicitors formally wrote the plaintiff demanding the plaintiff to immediately cease and desist from the importation, sales, distribution and marketing of COLA ROLA brand of candies as same constitute an infringement of the Defendants’ COCA COLA trademark for bottled drinks.
The plaintiff avers that there is no correlation between candies and bottled drinks, adding that under the Trademark Act, candies grouped as confectionery belong to Class 30 while bottled drinks grouped as beverages belong to Class 32.
Tashibo International Limited states that the unlawful, incessant and unbridled harassment, intimidation, molestations and threats by the defendants as well as the confiscation of the plaintiffs candy products amounted to an unlawful interference with the Plaintiff’s business.
It states that owing to the unlawful activities of the defendants, it has suffered damages and losses and would continue to suffer losses and damages if the defendants are not restrained by the honourable court.
But in their response to the Plaintiff’s Statement of Claim, the defendants aver that the honourable court ought not to grant the claims of the plaintiff as prayed. It states that the Statement of Claim is replete with unsubstantiated and unjustified allegations and claims.
“There is no basis in law or otherwise for the instant suit against the defendants and the institution of same is frivolous and amounts to an abuse of process ”
The defendants aver that the Plaintiff has not provided a single piece of evidence that the defendants have participated in any of such conducts that could have given rise to the Plaintiff’s claim for relief.
The defendants aver that the Plaintiff has failed to establish a cause of action against either defendants or the instant suit should be dismissed out of hand for this reason alone.
“Wherefore the defendant prays this Honourable Court to dismiss the claims of the plaintiff with a cost of N 50 million for being frivolous”.
Justice Aneke has adjourned the matter till June 5 for trial while asking the defendants to file and serve the necessary processes to the amended Statement of Claim of the plaintiff before the next adjourned date.
