The local beverage company had urged the court to restrained NBC 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.
After hearing argument from counsel to the plaintiff, Muyiwa Ogungbenro the judge granted the ex parte order.
Justice Aneke, specifically, restrained the defendant by itself and acting through agents privies, directors, employees, subsidiaries, or associated companies – from 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 Plaintiffs interlocutory application on notice for Injunction is determined by the court.
The court further granted an interim injunction directing the defendant to remove from public domain all media sales promotion materials that infringes or passes off or that is capable of infringing or passing off the plaintiff’s “Fearless energy drinkss” induding those released through “Tasooma” until the Plaintiff interlocutory application on notice for Injunction is determined by the Court.
Rite Foods Limited had submitted that 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 plaintiff had claimed 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.
The company also averred that the trademark has been in use by the Rite Foods’ brands before NBC’s Predator drink was launched into the market.
According to the Plaintiff, it owns the exclusive right to the get up which has been a mark of identifying its market leading Fearless energy drink brands.
It argued 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 the 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.
Justice Aneke has adjourned the matter to March 24 for further hearing.
