Juice makers square it out in court
Juice makers have been battling over trade marks in what is emerging as a war within the growing juice market segment buoyed by increasing demand.
For the last eight years, Triclover Industries had been selling its Clover Lime Juice hoping to get a slice of the multibillion-shilling industry.
But that was until last week when the Commercial Court in Nairobi ordered the company to withdraw its product from the market after Premier Food Industries successfully challenged the sale of the product, saying it mimicked its PEP Lime juice.
Still in Milimani, juice makers Kevian Kenya Limited (KKL) and Squishy Drinks Limited (SL) are also battling over a trade mark in what is emerging as a war within the growing juice market segment buoyed by increasing numbers of young population and fierce competition by the beverage makers.
The battle between Triclover and Premier Foods is now heading to the Court of Appeal, which will now determine whether a company that was found not to have infringed on a trade mark could still be found guilty of “passing off” a product in the market.
Trademarks
It will separate the tussle on the difference between trademarks and brands.
While trademarks are usually registered and authorised, brands are regarded “as a more complex phenomena that may be built from registered trademarks or firms’ names, but they can also emerge from unregistered symbols, firm practices, or distinct processes that emotionally connect producers’ values and reputations to consumers’ feelings,” according to brand scholars Patricia Saiz and Rafael Castro.
In the case filed at the Court of Appeal, Triclover is seeking the order to stay the High Court orders — that included withdrawal of the impugned product from the market.
They say: “While the superior court found that…the Triclover brand did not infringe on the respondent’s brand, the learned trial judge erred when she made a finding that the applicant was passing off its goods like they were those of the respondent.”
In the suit papers filed at the Court of Appeal, Triclover says that it was erroneous for the trial court to fine it Sh5 million.
Premier Foods
“The court erroneously proceeded from a premise that (Premier Foods) owns the design to one of the generic bottles used by (Triclover) and many other players,” says the papers filed at the Court of Appeal.
In her ruling, Justice Maureen Odero had observed that “there can be no doubt that (Triclover’s) product bears several similarities with Premier’s brand not least being the fact that the defendant decided to bottle its product in a bottle of similar shape, height and width as the bottle used by the plaintiff.”
“At first glance, the two bottles appear identical. In my view, those similarities are likely to cause confusion to the buying public.”
But in the appeal papers, Triclover says that the evidence of confusion “from only two witnesses was way too tenuous to support a finding of passing off. The learned judge ignored or neglected the applicant’s evidence on the distinctiveness of its various get-ups and packaging materials”.
While PEP juice has been in the market for over 30 years, Triclover’s brand was introduced in the market in 2013.
Justice Odero, however, noted that “no proof has been availed that such loss of profits actually occurred” – and now the Court of Appeal is being asked to determine whether it was right, then, to fine the company Sh5 million as general damages.
