Firm seeks perpetual injunction from intimidation by Coca-cola over trademark dispute
By Jude-Ken Ojinnaka
A Firm, Tashibo International Limited, producer of a brand of soft drink/confectionery known as ‘Cola-Rola’ candy has approached a Federal High Court, Lagos, seeking an order of perpetual injunction restraining the Coca-cola Company and Nigerian Bottling Company (NBC), from taking any steps amounting to threatening, harassment, molestation and/or intimidation against it, its distributors or any of its customers, on account of the importation, sales, marketing, distribution and promotion of “Cola Rola” brand of candy, over allegation of infringement of the defendants’ “Coca-Cola” trademark for bottled drinks.
The company also prayed for an order of perpetual injunction restraining the two defendants ( Coca-Cola and NBC) from interfering in any manner whatsoever or howsoever with its business as it pertains to the importation, sales, distribution, promotion and/or marketing of the “Cola-Rola” brand of candy,
The plaintiff further prayed the court to restrain the two defendants from threatening to confiscate and/or actual confiscation of its “Cola-Rola” brand of candies, found any where in Nigeria on account that It constitutes an infringement of the defendants’ ‘Coca- Cola’ trademark for bottled drinks.
Besides, the company also asked the court for a declaration that its product, Cola-Rola candy, does not in any way constitute an infringement of the defendants’ “Cola-Cola”.
It urged the court to declare that the sales or promotion of its “Cola-Rola” brand of candy has not in any manner whatsoever passed-off the goods as that of the defendants.
In the statement of Claims, filed by its counsel, E. N. Benny Bonny, the plaintiff averred that it is the importer and distributor of the brand of candy known as “Cola-Rola”, adding that it imports and distributes the said “Cola-Rola” candy by virtue of its agreement and collaboration with its Indian technical partner, NYRA Chocolates Private Limited (Hfp).
The Plaintiff further averred that its “Cola Rola” brand of candy is fully certified and registered with the NAFDAC and it has over the past three years spent tremendous amounts of money marketing and promoting the sales of the said “Cola-Rola” brand of candy.
It averred that its “Cola-Rola” brand of candy has become a candy of choice among school children, who are the target consumers/market nationwide owing to its great quality. It added that in the course of importing and distributing the above-mentioned candy, its business is conducted in a very lawful, peaceful and transparent manner without any disturbance or harassment from any person or organization/authority either private or public.
It expressed surprised at the information it received in late 2022 from its major distributor that distributors and marketers of its “Cola-Rola” brand of candy were being harassed, molested, intimidated and harangued by officers and agents of the defendants on the grounds that “Cola-Rola” brand of candy mimics the defendants’ trademark “Coca-Cola” used for the defendants’ bottled drinks.
According to the Plaintiff, it became nonplussed and embarrassed when It received further reports from its distributors and marketers, on or about June 25, 2023, complaining of further harassments, molestations, intimidation and threats of confiscation of the “Cola-Rola” candies as well as personal arrests, by the officers and agents of the defendants, thus causing some of the distributors and marketers to close up their shops and go into hiding In fear.
The Plaintiff stated that its immediate investigation confirmed the above reports to be true, as its officers found some of the its distributors’ shops in the Ebute Ero market, Lagos Island area, locked up by the distributors out of fear of personal arrest and confiscation of the “Cola-Rola” candies stored in their shops.
With the above narrations and reports, the plaintiff said that it considered a formal report to the Police and the various market association chairmen on the defendants’ harassment and intimidation, as the matter escalated and got to its peak on June 20, 2023, when the defendants through their solicitors formally wrote the Plaintiff demanding the Plaintiff to immediately cease and desist from the importation, sales, distribution and marketing of the “Cola-Rola” brand of candies, alleging that same constituted an infringement of the defendants’ Coca-Cola” trademark for bottled drinks.
The plaintiff also stated that the defendant’s solicitors’ letter also demanded it to immediately cease and desist from the sale, promotion and distribution of another brand of candy referred to as “FANTOP”,
The Plaintiff averred that whilst it does not deal in the brand of candy referred to as “FANTOP”, its “Cola-Rola” brand of candy bears no similarity in any form or manner with the defendants “Coca-Cola” trade mark for bottled drinks.
It pleads a real jar of the “Cola-Rola” candy and also a real bottle of the defendants’ “Coca-cola” bottled drink for comparison purposes.
The Plaintiff further pleads a photograph of its “Cola-Rola” brand of candy as well as a photograph of the defendants’ “Coca-Cola” bottled drink. Adding that there is no correlation between candies and bottled drinks, stating that ‘Under the Trademark Act candies grouped as confectionery belong to class 30 while bottled drinks grouped as beverages belong to class 32’.
Besides, contrary to the defendants’ letter, it is not in any way passing-off and has never passed-off the defendants’ goods, as there is no relationship between candies and bottled drinks. It submitted that there is no competition between bottled drinks and candies as their patrons and target markets are different and distinct.
It contended that ” the incessant and unbridled harassment, intimidation, molestations and threats by the two defendants has affected and still affecting the Plaintiff’s business adversely.
The plaintiff enumerated the adverse effects of the defendants’ action on its business as follows; “lot of its distributors have been forced to lock up their shops and outlets out of fear of arrest and/or confiscation of the stock of “Cola Rola” candies within their shops and stores.
“There has been a drastic reduction in the sales of the “Cola Rola” brand of candies by reason of the defendants’ hostile actions thus causing the Plaintiff to record huge financial losses.
“Large quantities of the “Cola-Rola” brand of candies in its stock are now close to their expiration period due to low sales occasioned by the inimical activities of the defendants.”
“That due to the activities of the two defendants, it has suffered damages and losses and would continue to suffer losses and damages, if the defendants are not restrained by the Court.
Recall that at the last hearing of the suit before the presiding judge, Justice Chukwujekwu Aneke, he ordered the first defendant, Coca-cola and Company, whose office is United States of America USA, be served with all the processes by substituted means.
The judge made the order while granting an Ex-parte motion, filed and moved by the plaintiff’s counsel.
Meanwhile the two defendants are yet to file any response/defence to the suit, while the matter has been adjourned to October 23, 2023, for report of service.