A Federal High Court sitting in Lagos has adjourned hearing of an application to consolidate the cases of alleged trademark infringement by the Nigerian Bottling Company (NBC) of its Predator Energy drink on Rite Foods’ Fearless Energy drink brand to March 10, 2022 as Counsel to both parties have agreed to present their facts for a fresh hearing.
The Court presided over by Honourable Justice P.O Lifu made the adjournment after representations made by the Counsel to Rite Foods Ltd of the intention to consolidate another matter which was pending against NBC, before Justice C.J Aneke with the one before Hon. Justice Lifu, in order to have both cases heard and determined by Hon. Justice Lifu.
Present for Defendant, Rite Foods, were Chief ‘Wole Olanipekun, SAN, and Bode Olanipekun, SAN, while Barrister Emmanuel Agidi represented the NBC, in a lawsuit that may now take a new twist as Hon. C. J. Aneke directed that the suits be consolidated.
The alleged trademark infringement or passing-off by the NBC Predator brand is hinged on the resemblance of the Lion insignia of the market leading Fearless energy drink, which consists of the Fearless Classic and Red Berry brand, produced by Rite Foods, which made entrant into the Nigerian market in June 2017, three years before the Predator brand was launched in June 2020.
In similar suit, No. FHC/L/CS/92/2021 and with Form 48, at the Federal High Court, Lagos, published on Friday, March 19, 2021, in ThisDay and Guardian Newspapers, the plaintiff, Rite Foods, alleged that NBC has infringed on its trademark with its Predator energy drink, which has adopted a mark similar to the Lion imagery of its Fearless energy drinks.
Given that, the Truly World-class food and beverage company filed a motion ex- parte motion 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 or that is capable of infringing or passing off Rite’s Fearless energy drink until the interlocutory application for injunction is determined.
According to Rite Foods Ltd, it owns the exclusive right to the trademark which has been a mark of identifying its market-leading Fearless energy drink brand, and that consumers are likely to assume (mistakenly) that both products are from the same source.
It pointed out that the degree of similarity between the Lion symbols on both energy drink brands is enormous, and that since both compete in the same market spectrum, the mark is likely to confuse consumers about the source or sponsorship of the brands offered under the defendant’s mark.