By Lukman Olabiyi, Lagos
The Nigeria Bottling Company (NBC) has been sued before the Federal High Court Lagos by Rite Foods Limited for allegedly infringing on its trademark.
The plaintiff, Rite Foods Limited, had filed a motion ex parte for an interim injunction against the defendant, NBC, restraining it from further promoting or using any sales promotion material for its “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 an injunction is determined.
The plaintiff alleged that trademark infringement of its product by NBC negated 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 it.
In an affidavit attached to the suit, the plaintiff stated 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, and has gained a wider market share before the NBC’s “Predator’ brand which made entrant in June 2020. And based on the time factor, the plaintiff claimed that the trademark has been in use by the Rite Foods’ brands before NBC’s “Predator” drink was launched into the market.
The plaintiff claimed it owns the exclusive right to the get-up which has been a mark of identifying its “Fearless” energy drink brands.
It stated that with the infringement by NBC, consumers are likely to assume (mistakenly) that the aforementioned energy drinks in the case are from one source.
According to the company, because of the degree of similarity between the lion symbol on its “Fearless” brands and NBC’s “Predator” energy drink is high, considering that 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.
Further hearing in the case has been slated for March 24.
