Trademark Infringement: NBC Sued over Trademark infringement Activity, Likely to Confuse Consumers, Applicant Alleged

The Nigeria Bottling Company (NBC) is entwined in a legal tussle over trademark infringement on its Predator energy drink, with a lion symbol, which has the likelihood of confusing consumers of that market segment who are used to the market leader, a product of Rite Foods Limited.

The lawsuit with the number, FHC/L/CS/92/2021, which was contained in a publication in the ThisDay and Guardian newspapers editions of Friday, 19th of March, 2021,was instituted against the NBC by Rite Foods Limited at a Federal High Court, in lkoyi, Lagos, on January 20, 2021. The publication also contains notice of contempt proceedings against the managing director of NBC for disobedience of interim injunctions granted by the court.

In line with the court proceedings, the counsels to the plaintiff, Rite Foods Limited, 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 injunction is determined.

In the suit, the alleged infringement negates the law which offers exclusive rights to owners of product designs.

With further investigations, it was discovered that the Plaintiff, 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.

This points out that the trademark had been in use by the Rite Foods’ brands before NBC’s Predator drink was launched into the market.

And according to Rite Foods, it owns the exclusive right to the design which has been a mark of identifying its market leading Fearless energy drink brands.

The company 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.

It further stated that the degree of similarity between the lion symbol on its Fearless brands and that of 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 brand offered under the defendant’s mark.

Further proceedings for the case at the Federal High Court are slated for March 24, 2021.

However, while the Predator brand is struggling to gain acceptance among consumers, Rite Foods’ Fearless energy brands has attained a very high market share of the lucrative beverage market, cutting across the different demographics, mainly the youth segment.

The Fearless brands provide consumers limitless benefits and contain high quality ingredients.

The energy drinks contain Vitamin B6, a water-soluble nutrient that is part of the vitamin B family, which supports adrenal function, helps calm and maintain a healthy nervous system, and are necessary for key metabolic processes.  Also, included is Vitamin B12 which is essential for building blood cells and maintaining healthy nerve cells in the body.

Few cases of trademark infringements in the country were those 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, and the court held against the appellant, Nabisco, on the premise that it has not used the mark sufficiently to acquire a reputation for the mark in Nigeria, that 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, Combatrin Plus, with the mark, Combatinrein, which was likely to confuse consumers.

The plaintiff’s (Pfizer) action for injunction, order of delivery up for destruction of the infringing product (Combatinrein) and general damages succeeded.