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Cadbury, OK Foods battle in court over trademark rights Stories by OLUFIKAYO OWOEYE
F
ast moving Consumer goods (FMCG) giants, OK Foods Limited and Cadbury UK Limited have gone to court to decide who has the rights to a trademark. OK Foods Limited, a unit of Olam Foods International and makers of a wide range of confectionary products including Top Mint Candy sweet has filed a N260 million suit in a Lagos court against Cadbury UK Limited, owners of TomTom Candy sweets over threats emanating from the use of generic trade dresses, colours and shapes in the production of Top Mint Candy sweet. Joined as co-defendants in the legal tussle are Cadbury Nigeria Plc as well as the Nigerian Registrar of Trade Marks. According to the claim filed before a Federal High Court in Lagos by Peter Shobiye, Attorney for the plaintiff OK Foods, it alleges that the plain-
tiff applied for the registration of the trademark Top Mint on the 15th of April 2005 and was issued the certificate of Trade Mark RTM 73440 by the Registrar of Trademark. And for over 13 years, Top Mint had been a popular brand with Nigerian consumers and it is strongly associated with menthols flavoured candy. The label and trade dress was also approved and registered by the National Agency for Food and Drug Administration and Control (NAFDAC). However the plaintiff claim that it has been consistently harassed, threatened and intimidated by Cadbury UK Limited through a series of letters alleging that its Top Mint shape, design, and colours are confusingly similar and infringing on its TomTom and demanded that it should immediately cease further manufacturing, promotion, marketing and offering for sale of its Top Mint menthol flavoured candy, alleging that has the same identity and confusing similarity with TomTom. The plaintiff contended
that Top Mint is not similar nor can it be confused for TomTom nor can it be deceptively regarded as the product of the respondents. The plaintiff averred that the respondents cannot claim sole ownership of the black and white combination in the candy/confectionery industry as the black and white colour is generically used color combination in the industry with many other manufacturers using the two combinations. The plaintiff avers that it has suffered huge financial losses due to the threat, intimidation, harassment caused to its business by letters from the Cadbury’s solicitors threatening its business and legitimate use of its Top Mint trademark.
However, the respondents have denied the entire allegation in their counterclaim. Consequently, OK Foods while demanding for the sum of N250 million as general damages against Cadbury (UK) limited for the undue harassment and threat caused to its business and legitimate use of its Top Mint, Trade Mark is also claiming the sum of N10 million being the cost of prosecuting this legal action. The plaintiff is also urging the court to restrain Cadbury (UK) Limited and Cadbury Nigeria Plc and their agents from harassing or preventing it from legitimate use of its Top Mint and restrain them from monopolising the use of generic trade, colours, shapes in the course of trade.
The plaintiff is also urging the court to order Cadbury (UK) limited to issue a written letter of apology to it within 7 days of the date of judgment. However, Cadbury (UK) Limited and Cadbury Nigeria Plc in their statement of defence filed before the court by Barrister Phoenix Unuigbe stated that Cadbury (UK) limited was the registered proprietor of the TomTom with t ra d e ma rk re g i s t rat i o n 248430516449327 at the Trademark registry and that Cadbury Nigeria Plc had exclusively manufactured and had been associated with TomTom brand since 1970. The defendant denied that Top Mint Candy was distinctive and not confusingly similar to any other brands of candy in the market as in September 2018, they discovered that the candy Top Mint was being sold in the market with a similar black and white stripes as its Tom Tom strong menthol candy. Consequently, they instructed their solicitors in
Nigeria to write a cease and desist letters to the plaintiff but denied that the letters amounted to harassment, threats, and intimidation. The defendants, by way of counterclaim contended that the plaintiff was trading on their goodwill of the TomTom brand by adopting black and white colour patterns of its TomTom strong Menthol Candy. He, therefore, urged the court to restrain the plaintiff from further copying the black and white colour and pattern of the TomTom which constitutes passing off. The defendant is also urging the court to order the plaintiff to pay them the sum of N5 million as general damages and interest on same from January 2019 at the rate of 21% per annum until judgment is passed and thereafter at the rate of 20% per annum and N10 million as cost of defending the suit. Justice Oluremi Oguntoyinbo of the Federal High Court, Lagos has set July 21 for hearing on the case.
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Competition heightens among Motorcycle hailing platforms …customers clamor for partnership between car and motorcycle hailing apps.
T
he number of ridehailing platforms is on the increase in Lagos, Nigeria’s commercial center. Buoyed by the growing mobile penetration in cities, ride-hailing platforms have warmed its way into the hearts of customers. Gone are the days when the only option for public transportation was either hopping on the rusty and dirty yellow buses popularly called “Danfo and Molues” or hailing taxis by the roadsides. Now when commuters scroll through their smartphones for a ride-hailing app, cars are no longer the only option that shows up, motorcycle-hailing startups also. Parked at strategic junctions in the city, their motorcycles and helmets come in different colors ranging from Orange, Green, and Yellow. The idea of an on-demand, flexible transport service to get around Lagos’ hours-long traffic jams and congestion is an appealing proposition for millions of residents, it’s also cheaper compared with established car-hailing services like
Uber and Taxify. According to TechSci Research report, South Africa, Nigeria, and Tanzania are the largest two-wheeler markets in Africa. The report also predicted that the two-wheeler market in Africa will cross US$ 9 billion by 2021. The two-wheeler market in Africa has been segmented into two categories, namely, motorcycle and scooter. Among these categories, the motorcycle segment dominated the continent’s two-wheeler market in 2015, owing to various associated advantages such as quicker acceleration, better engine capacity, large fuel tank, larger,
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and easy maintenance. Moreover, booming motorcycle taxis business in African countries is further augmenting demand for motorcycles in the continent buoyed by rapid urbanization, growing population and inadequate means of transportation, the segment is anticipated to maintain its dominance over the next five years as well. Chinyere Ezenwa a regular user of both bike and car-hailing services said most commuters start a journey with a bus or taxi, and alight to complete the journey on a bike, or I could be in a bus or taxi and if the traffic is so intense I could alight
and board a bike to my final destination, but complained about the stress of having to download several apps on his android phone. “Why should ordering a Bike be on a totally different application and ordering a car be on another different standalone application,” she queried “I don’t see any reason why bike hailing platforms can’t partner with a Gidicab/Uber/ Taxify & integrate the bike & ride-hailing service to a single application,” she added. Riding an okada could be very risky because of the recklessness associated with riders. Interestingly, the new motorcycle hailing companies are trying to position their new offering as a safer means by emphasizing features such as carrying one passenger on a trip, insist passengers wear helmets and training their riders to comply with traffic laws. The players in the motorcycle hailing market are not only winning customers also investors. Recently, Gokada raised $5.3million in a Series A round led by Rise Capital. Opera, an internet
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company known for its Opera Mini browser, launched Oride in Lagos, while SafeBoda, the East Africa player, has also announced an expansion into the Nigerian market. The bike and car-hailing platforms now have to compete for the passengers. The advantage of being more flexible and faster than cars in traffic has made motorcycles more appealing to passengers who are always in haste to reach their destinations. Femi Adu, a commuter noted that the proliferation of ride-hailing platforms is a good development for customers as they now have several platforms to select from. “The Ride hailing provider that would emerge King in this business is the one that combines these methods of road transport (Bike option, Regular Car option, Premium Car option even Keke- Tricycle option) coupled with value-adding services such as parcel and food delivery. Imagine a situation where I can be in a car and if the traffic is too intense, I would transition my journey to a @Businessdayng
bike still on that same application. I don’t need to have all of these on different applications when it’s serving one purpose - taking me to my destination,” he said. Users download an app, sign up, request rides and branded motorcycles show up on-demand. But as an added feature, users can also hail branded bikes on the street as with standard okadas. Then the passenger pairs up via the app to start a journey. The biggest down risk to motorcycle hailing platforms remains government regulations and sanctions. In 2012, the Lagos State Government imposed a ban on motorcycles from plying major roads in the state, especially motorcycle with less than 200 cylinder capacity. Gokada and Max.ng have attempted to maneuver that ban by providing their riders with motorcycles above that threshold but it has not proven enough to ensure a smooth ride: both companies had their bikes seized by the state government in March for violating state road laws.