What you need to know:
- In the appeal, Triclover wants to overturn the decision of the High Court’s commercial division to stop it from manufacturing, distributing and selling its beverage drink known as Clover Lime Cordial Juice.
A trademark dispute between two juice makers has moved to the Court of Appeal as they fight to protect their stakes in the multibillion-shilling industry.
The row pits Premier Food Industries against Triclover Industries. Triclover has suffered a blow after judges declined a request to suspend a High Court order to withdraw its product from the market and pay a penalty of Sh5 million.
In the appeal, Triclover wants to overturn the decision of the High Court’s commercial division to stop it from manufacturing, distributing and selling its beverage drink known as Clover Lime Cordial Juice.
In the February 5 judgment by Justice Maureen Odero, Premier Food successfully challenged the sale of the product, saying it mimicked its PEP Lime juice.
Asking the appellate court to suspend the judgment, Triclover Operations Manager Muzahir Bhaijee said the damages award of Sh5 million is so big it would cripple the company’s operations.
“We will suffer irreparable loss in the event that the appeal succeeds as we will have lost goodwill in the lime juice business in the consumer market, which will cause a negative ripple effect in the general performance of our umbrella brand Clovers,” Mr Bhaijee said.
But justices Wanjiru Karanja, Asike Makhandia and Gatembu Kairu dismissed the application, rejecting the argument that if the High Court decision is not suspended Triclover will not be able to continue production.
“A careful reading of the impugned judgment shows that the court did not bar Triclover from production but the same only bars it from using logos and packaging that would likely pass off as those of the Premier Foods,” the judges said.
They found that it is indisputable that Triclover can continue trading using its own rightfully registered trademark.
However, the judges found that Triclover has an arguable appeal against the High Court judgment. For instance, there is the issue of whether Triclover had infringed Premier Foods’ trademark.
“Had Triclover been passing off its lime juice Cordial as Premier Foods? Those are, among others, issues that call for the determination of this court,” the judges said.
In the appeal, Triclover says the High Court judge erred in failing to consider the evidence on record that the words “Lime Juice Cordial” were used widely by numerous manufacturers in the market and that it was clear its product was the most distinctively packaged compared with Premier Foods’ product.
It also contends that the judge erred in awarding damages despite making a finding that no damages were proved by credible evidence even by way of audited accounts.
In her judgment, Justice Odero found that it was more intriguing that the trademark used by Triclover on its bottles in supermarkets is not the same one it registered with the Kenya Industrial Property Institute (KIPI).
The logo that Triclover registered for its lime juice has a blue background with the name Clovers in white lettering against a red background with a yellow ring around it.
“The only reason Triclover would run away from their own registered mark, which was different and distinct from the Premier Food registered mark, is because their intention was to misrepresent its goods as those of Premier Foods by confusing the public and passing off their product as that of the Premier Food,” Justice Odero said.
“An average customer would not in my view be able to easily differentiate between the two products.”
Registrar of Trademarks Eunice Njuguna confirmed to the court that the mark Triclover had registered was not the same one that appeared on the bottle.