By Onyewuchi Ojinnaka
Rite Foods Limited, producers and marketers of Bigi snacks and Fearless Energy drinks has instituted an infringement suit against the Nigerian Bottling Company (NBC) for infringing or passing off on its product of Fearless Energy drink, with lion head as its Trade/Copy Rights mark.
In the suit No. FHC/L/CS/92/2021, Rite Foods Limited (plaintiff) had also filed an ex- parte application seeking an interim injunction restraining the NBC (defendant) from further promoting or using any sales promotion material for its (defendant’s) 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.
According to the plaintiff, 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.
The plaintiff averred that 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, adding that the products have gained wider market share before the NBC’s Predator brand which was introduced in June, 2020.
It contends 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 lion head trademark 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 mistakenly assume that the aforementioned energy drinks in this case are from one source.
According to the company, the degree of similarity between the lion head symbol on its Fearless brands and the NBC’s Predator energy drink is high, arguing 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.
However, while the NBC’s Predator brand is struggling to gain acceptance among consumers, Rite Foods’ Fearless energy brands has 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.
In order not to mistaken its energy drink for predator, the plaintiff (Rite Foods) reveals that Fearless 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.
But in publications in the ThisDay and Guardian newspapers editions of Friday, March 19, 2021, they published court contempt forms to initiate contempt proceedings against the Managing Director of NBC in respect of injunctions granted by the Federal High Court, Lagos against NBC.
The case has been fixed for hearing on March 24 before Justice Chukwujekwu Aneke.
The plaintiff cited few cases of trademark infringements in the country as 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 premise 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.