The Rite Foods Limited has dragged the Nigeria Bottling Company (NBC) to court over alleged trademark infringement.
The firm said NBC’s Predator Energy drink, with a lion insignia, is similar to its own product, Fearless Energy drink, which had existed for three years before the company began to produce Predator.
As a result, the applicant has initiated a contempt proceeding against the Managing Director of NBC, which has also been published in respect of injunctions granted by the Federal High Court, Lagos against the NBC.
In the suit marked FHC/L/CS/92/2021, the applicant 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 applicant’s product, until the interlocutory application for an injunction is determined.
According to the applicant, 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 applicant said its product, which consists of the Red Berry and Classic brands, was launched into the Nigerian market on June 15 and 16, 2017, respectively, and has gained a wider market share before NBC’s Predator brand made entrant in June 2020.
This, it said, indicated that the trademark has been in use by the Rite Foods’ brands before NBC’s Predator drink was launched.
According to the applicant, it owns the exclusive right to the get-up, 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 assume (mistakenly) that the aforementioned energy drinks in the case are from one source.
According to the company, the degree of similarity between the lion symbol on its Fearless brands and NBC’s Predator energy drink is high, and 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.
Further proceedings for the case at the Federal High Court are slated for March 24, 2021.
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