Brand and marketing specialists currently observing the legal battle between two top energy drink giants, Rite Foods Limited and Nigeria Bottling Company, over infringement feel it would help create a pathway that would guide the handling of trademark issues among Nigerian consumer brands, writes Wale Igbintade
The legal battle between Rite Foods Limited, manufacturers of Fearless Energy drink, and Nigeria Bottling Company (NBC), the owners of Predator brand, took a new dimension last week when a Federal High Court in Lagos fixed December 1, 2021 to deliver its ruling on a contempt proceedings filed by Rite Foods against the Managing Director of Nigerian Bottling Company (NBC), Mathieu Seguin over alleged trademark infringement.
The trial judge, Justice Ambrose Lewis-Allagoa fixed the date after listening to the arguments and submissions of counsel to parties in the suit.
At the resumed proceedings last week, counsel to NBC’ MD, Mr. Oluseye Opasanya (SAN), informed the court that he filed motion on notice dated October 18 supported with seven paragraph affidavit together with one exhibit. Opesanya said that he brought a motion to strike out the suit on a number of reasons.
Before then, counsel to NBC, Ngo Matins Okonma, told court that he filed an application dated October 15, 2021 and a motion on notice in respect of the application to regularise the application dated November 11.
In his motion on notice, he prayed for the order of court to set aside the committal proceeding in its entirety including all processes used by plaintiff in the proceedings.
Opesanya and Okonma argued that the contempt order had been discharged.
“The order upon which committal proceedings was premised on has been discharged, set aside by Justice Chukwujekwu Aneke on September 27, 2021,” they submitted.
NBC prayed the court to dismiss contempt suit and award punitive costs against Rite Foods if it finds no basis for the contempt proceedings. The senior lawyer therefore urged the court to grant their application and dismisse the case.
However, in his response, the plaintiff counsel, Mr. Muyiwa Ogungbenro, told court that he had filed counter affidavit sworn to by Francis Omoniyi, dated October 21, 2021 and a written address to support their case. He prayed the court to dismiss all the applications filed to set aside the contempt proceedings.
After listening to the argument and submissions of the parties, Justice Lewis-Allagoa adjourned ruling to December 1, 2021.
It could be recalled that on September 27, 2021 Justice Aneke upheld the objection filed by NBC’s counsel, suspending further hearing of Rite Foods’ case and discharged the ex-parte order granted Rite Foods against NBC and its privies.
The court also refused Rite Foods’ motion for interlocutory injunction seeking to prevent NBC from marketing or distributing Predator Energy drink in Nigeria.
Although the court agreed with the plaintiff that the instant suit is not an abuse of court process, but held that “to avoid confusion, this court would cease from further hearing of this suit to allow other suits go on. I, therefore, discharge the order made by me to allow the instant suit go on.”
When the matter came up for hearing before Justice Lewis-Allagoa last Monday, Opasanya and Mr. Mark Mordi, counsel to NBC and its Managing Director informed the court that since Rite Foods’ counsel had failed to withdraw the contempt suit, they had no option than to file a formal motion to have the contempt suit dismissed with substantial costs against Rite Foods.
Opasanya told the court that he had an application dated October 18 and filed on October 21, 2021, seeking to quash the contempt against his client. He reiterated that Justice Aneke had discharged the exparte order made against his client on September 17, 2021.
Opasanya (SAN), prayed the court to set aside or dismiss the entire suit.
Rite Foods’ Fearless energy drinks, which consist of the Red Berry and Classic brands, were launched into the Nigerian market in June 2017, while NBC’s Predator brand entered the market in 2020.
However, early this year, it instituted legal proceedings against NBC, alleging trademark infringement on account of NBC’s Predator energy drink which spots a lion insignia in resemblance to Fearless Energy Drink.
In suit No. FHC/L/CS/92/2021, the plaintiff filed a motion ex parte for an interim injunction restraining the NBC from further promoting or using any sales promotion material for its Predator energy drink in a manner that infringes or passes off the plaintiff’s Fearless energy drink, until the interlocutory application for an injunction is determined.
It argued that 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 designs of products already in use by a proprietor.
Rite Foods also argued that a business name and logo is the distinguishing factor of a business, adding that it is of immense value to a brand and sets it apart from other brands.
It further contended that while it is important that handlers of brand protect it from infringement by third parties, it is equally vital to understand that the law regulating trademark registration in Nigeria grants exclusive right of ownership to a trading name or logo.
It noted that a trading name or logo is a brand’s identity and trademarking it grants exclusive commercial rights, and that it also prevents other businesses from using a similar name or mark.
But the NBC said that there has been no trademark violation or passing off with its Predator Energy drink and maintains that the Predator brand logo has been in existence and in use in many markets even prior to the launch of Fearless by Rite Foods in the Nigerian market. It asked the court to dismiss the suit in its entirety.
Many analysts believe that legal tussle reminds the brand industry of the Cola War of the 70s. The war was one of most polarising and iconic battles among beverage brands as Coca-Cola and Pepsi went to battle to determine who becomes the ultimate champion in the soft drink market.
The tussle was part of the strong effort of each of the parties to differentiate themselves, as both of their beverages were brown, sweetened and carbonated soft drinks.
While Coca-Cola emphasised a sense of belonging and loyalty in the hearts and minds of consumers, PepsiCo focused on showcasing how their brand is up-to-date, fresh and youthful. Many still believe the battle is covertly still ongoing till date.
Interestingly in Nigeria, the feud between Rite Foods and NBC is not the first case of trademark infringement in Nigeria. There was a case 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.
But in its ruling, the court ruled against Nabisco on the grounds that it had not used the mark sufficiently to acquire a reputation for the mark in Nigeria; and therefore 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, Combantrin Plus, with the name Combatinrein, which was likely to confuse consumers.
No doubt the outcome of the legal battle between Rite Foods and NBC would nonetheless create a pathway that will guide the handling of trademark issues among Nigerian consumer brands in the future.
