By Lukman Olabiyi
The Nigeria Bottling Company (NBC) has been dragged before the Federal High Court, Lagos, by Rite Foods Limited for allegedly infringing on its trademark.
In suit No. FHC/L/CS/92/2021, the plaintiff, (Rite Foods Limited), had filed a motion ex parte for 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 drinks, until the interlocutory application for 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 up’ and designs of products already in use by it.
In an affidavit attached to the suit, 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, 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 averred that with the infringement by NBC, consumers are likely to assume (mistakenly) that the aforementioned energy drinks in the case are from one source.