The Fearless and Pop Power Identity Theft and Trademark Infringement Debate

Raheem Akingbolu writes on the debate trailing the clash between the  Rite Foods Limited and Mamuda Beverages over similarities between the Fearless Energy Drink and Pop Power, pointing out its possible effect on consumption, marketing and issues related to  trademark infringement and intellectual property debate in Nigeria

Trademark and intellectual property have become legally binding  intangible assets for corporations to leverage on. Brands like Google, Microsoft and Facebook are among the foremost global brands that have consistently benefited from this legal provision even after selling off part of their investments.
Businesses, the world over, assign much importance to trademarks for easy identification of their products and its usage dates back to prehistoric times. It is a type of intellectual property consisting of a word, phrase, symbol, or design (or a combination of any of these) that identifies the source of a product or service and distinguishes it from those of competitors.
For example, the trademark “Coca-Cola” distinguishes the brown-coloured soda water from that of Pepsi.
Indeed, about two thousand years ago, Roman craftspeople left their distinctive marks on almost everything made, from tableware, brickwork and roof tiles, to decorative vases, gravestones, lead slingshot ammunition, and even plumbing. Though, without any real legal clout, they were ways of claiming bragging rights over their work.
In the United States (US), trademark law went through a few incarnations before arriving in what now exists in modern times. It started with an old law in 1870, to a new act in 1881, revised in 1905 and in 1946; the Lanham Act spelt out federal trademark protection and registration rules.

Coming down to Nigeria
In Nigeria, trademarks are provided for by the Trademarks, Patents and Designs Registry, Commercial Law Department of the Federal Ministry of Industry, Trade and Investment. And this is under the Trade Marks Act, Cap T 13, Laws of the Federation of Nigeria 2004 and the Trademark Regulations 1990.
The importance of trademark and product style protection against passing-off by others trying to deceive the consumers to believe their product shares the same quality with the original cannot be over-emphasised.
Disputes arising from infringements of trademarks copyrights, identity theft and product style copying abound in the western world, as well as in Nigeria.

Some of the cases recorded in the country’s business locale include that of Nabisco Inc., and Allied Biscuits Company Limited, in 1998, where both companies were entangled in a lawsuit on the trademark RITZ.
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 it in the country, that its intention is to destabilise the Nigerian market and her economy.

Issues around catching up, passing off, and product identity
Interestingly, one of the major global marketing disputes regarding trademarks is usually associated with established brands and a catching up or weaker brand passing off the established brand. This appears to be the bone of contention in a current legal battle  regarding product identity theft and  trademark infringement by the Mamuda Beverages on its Pop Power energy drink with similar identities in bottle, cover and size, which is a reflection of a similar identity of the current market leader, named Fearless, a product of Rite Foods Limited.

Unfortunately, this is not the first time Mamuda Beverages Nigeria Limited  would swim in troubled water. In 2022, the Coca-Cola Company had sued Mamuda for infringing on the Trademark of Coca-Cola in Nigeria. The global beverage company filed a lawsuit against  Mamuda that claimed the latter had been using the word ‘pop’ when selling its fizzy drink in Nigeria for years. The issue was whether Pop Cola, a product sold by Mamuda Beverages Nigeria limited, was an infringement on the Coca-Cola trademark.

As a result of the current alleged violation, Mamuda Beverages  was dragged to a Federal High Court of Nigeria, Abuja Judicial Division on 28th day of January, 2025 by Rite Foods Limited for infringing on the trademark and design elements of its Fearless Energy Drink with the launch of a similar-looking product, Pop Power. Pursuant to this, on the 4th day of March, 2025, before his Lordship, the Honourable Justice I.E Ekwo, consent judgement was delivered,  as published by many news platforms.

The case led to the grant of injunctive reliefs, including Anton Piller orders, after which Mamuda opted for a settlement. Under the terms of that settlement, Mamuda in admittance of the violation undertook to destroy all infringing Pop Power Energy Drink products — an exercise confirmed duly carried out, with visual and pictorial evidence provided. Mamuda equally pledged to desist from any further violations of Rite Foods’ intellectual property rights. Under the terms of that settlement, Mamuda in admittance of the violation undertook to destroy all infringing Pop Power Energy Drink products — an exercise confirmed duly carried out, with visual and pictorial evidence provided. Mamuda equally pledged to desist from any further violations of Rite Foods’ intellectual property rights.

When it was assumed that the issue had been laid to rest, especially with the destruction of the existing Pop power energy drinks as ordered by the court, Memuda allegedly, in what appears like a circumvention of the earlier consent judgment, came out through a backdoor again with a new package that even appears closer and strikingly similar in identity to the Fearless Energy drink than the previous subject of Consent Judgment for Pop Energy destruction. Then, Rite Foods raised fresh concerns over what has been described as “ circumvention of a consent judgement previously agreed between the parties.”

In an unexpected turn, Mamuda didn’t only reintroduce Pop Power into the market, but with only cosmetic adjustments to its appearance. Rite Foods maintains that these changes are minor and do little to address the original issues of consumer confusion. Reports from the market indicate that the new Pop Power continues to be informally referred to as “small Fearless,” reinforcing concerns that the revised product may not only breach the spirit of the earlier agreement but could also undermine consumer clarity and brand differentiation. A source said that the major concern of Rite Foods Limited is consumer protection as most Fearless Energy consumers erroneously mistake a lower quality product for their market leader product.

This sequence of events, in Rite Foods’ view, raises broader questions about adherence to judicial outcomes and the integrity of the system safeguarding intellectual property rights.
By  proceeding with a product that perpetuates confusion so soon after a formal resolution, Mamuda’s actions risk compromising confidence in dispute resolution mechanisms critical for fair business practice.
On the fresh matter before the court, our source clarified that, contrary to some media misinterpretations, Rite Foods’ ex parte motion before the Federal High Court was not denied. Rather, the Court elected to first hear Mamuda’s preliminary objection—a procedural step that does not affect the substance or merits of Rite Foods’ case.
In reaffirming its position, Rite Foods stressed its continuous commitment to the protection of its brands, its consumers, and the principles of innovation and fair competition in Nigeria’s marketplace. The company emphasised that genuine business growth must be anchored on originality and respect for intellectual property, rather than imitation and fraudulent business practices.

Meanwhile, Memuda,  the producer of the Pop Energy drink, has described Rite Foods’ fresh legal move as “bullying,” stating through the paid post in several publications that it had complied with  the earlier consent judgment by the court. In what appears like inadvertently advertising its earlier guilt and underplaying the trademark effect on consumers, Memuda is relying on certain slight changes it has made to the Pop Energy drink  to rationalise its current strikingly similar package to that of Fearless Energy Drink.

Commenting on the development, a constitutional lawyer, Mr. Kabir Akingbolu,  has argued that trademark, passing off and similar identity concerning businesses and products are infringements.
Akingbolu, who is the Principal Partner at Salawu, Akingbolu & Co.said: “Passing off is a  strict and serious commercial offence and infringement when it bothers on trademark. Looking at the issues at hand, the two bottles; Fearless and Pop Power, is a clear case of passing off. To start with, Fearless has been in the market for years. It came earlier, and it has become known and registered in the consciousness of consumers. From the cover, to the bottle, to the size and even the colour, put side by side, it is obvious that Pop Power was out to benefit from the market acceptability profile and identity that promoters of fearless have built over the years. To this end, it’s safe to conclude that Pop Power is liable for passing off  Fearless drink as a registered brand  and under   commercial law that guides competition. It is never allowed. It’s a law cleverly put in place so that owners of established and registered trademarks are not infringed upon or exploited. Reaping from the efforts of another manufacturing company to sell your product is illegal.”

Speaking further, Akingbolu argued that Fearless, having been in the market for years and registered in the consciousness of all – including those who are not lettered, has earned consumers’ trust and loyalty, which can be eroded by Pop Power infringement if not immediately nipped in the bud.