The battle between Rite Foods Limited, manufacturers of Fearless Energy drink, and Nigeria Bottling Company (NBC), the owners of Predator brand, promises to be a long drawn one.
Few days ago, Rite Foods Limited instituted legal proceedings bordering on trademark infringement on account of NBC’s Predator energy drink which spots a lion insignia in resemblance to the well-liked market leader, Fearless Energy Drink.
In a publication in ThisDay and Guardian newspapers editions of Friday, 19th of March, 2021, court forms initiating contempt proceedings against the Managing Director of NBC were published in respect of injunctions granted by the Federal High Court, Ikoyi against NBC.
In suit No. FHC/L/CS/92/2021, 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 the plaintiff’s Fearless energy drink, until the interlocutory application for an injunction is determined.
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.
This legal encounter reminds one of the Cola War of the 70s. The Cola War was one of most polarizing 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 battle was part of the strong effort of each party to differentiate themselves, as both of their beverages were brown, sweetened, carbonated soft drinks. While Coca-Cola emphasized 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.
Analysts say that the degree of similarity between the lion symbol on Fearless brands and the one on NBC’s Predator energy drink is remarkably high, and that since both compete in the same market spectrum, the mark may likely cause confusion in the minds of consumers.
Investigation reveals that the Plaintiff, Rite Foods’ Fearless energy drinks, which consist of the Red Berry and Classic brands, were launched into the Nigerian market in June, 2017, and they had gained a wide market share before NBC’s Predator brand entered the market in 2020.
In developed markets, companies are known to spend huge amount of money to design their logos for many reasons. This is because a bad logo can easily pull down a brand.
Findings revealed that there is more to a logo than its basic aesthetic appeal. A study conducted by an international team of researchers in Europe revealed that a huge percentage of consumers make complex assessments of a company or product based merely on the looks and shape of the logo. In fact, a company’s logo is the visual figurehead of a brand, so it’s important to get it right. Whether intentional or not, every detail of a logo will influence many people who see it. That’s why nothing should be arbitrary.
In Nigeria, so many people do not understand the importance of a professionally designed logo to a company or product. That is why there are several small and medium businesses without a professional logo design. Many consumers in Nigeria don’t even bother to look at the logo before making a buying decision.
This attitude of Nigerian Consumers has made several brands pay little attention to the importance of logo in this clime. Several grocery stores in Nigeria have all kinds of products with confusing logo touting products as being authentic. While in actual sense, some of them are misleading.
In some cases, because of trademark infringement by other brands, consumers are likely to mistakenly assume that the products they are buying are from one source.
A logo, just like any other trademark is used to distinguish goods and services offered by different manufacturers. It is an intangible asset and can be regarded as a commercial signature.
A business name and logo is the distinguishing factor of a business. It is of immense value to a brand and sets it apart from other brands. It is important that handlers of brand protect it from infringement by third parties.
It’s equally vital to understand that the law regulating trademark registration in Nigeria grants exclusive right of ownership to a trading name or logo. A trading name or logo is a brand’s identity and trademarking it grants exclusive commercial rights. It also prevents other businesses from using a similar name or mark.
Interestingly, 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, and the court held against the appellant, Nabisco, the premise that it has 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.
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What some members of the public might not understand is that incorporating a company at the Corporate Affairs Commission (CAC) only prevent other persons from registering a business with a similar name. It does not guarantee protection of Intellectual Property in the name.
This is why it is important for owners to register the trademark of their businesses to protect the Intellectual Property in its trade name.
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.
Godwin Anyebe
