A Federal High Court sitting in Lagos has adjourned the consolidation of the case 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 Counsels of 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 proceedings from the Counsels to Rite Foods and the NBC, in a case that was formerly before Justice C.J Aneke, which would now be brought forward for the first time for ruling, with all the facts and applications therein.
Present for the plaintiff, 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.
The alleged trademark infringement or passing-off of the NBC Predator brand was 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 suit No. FHC/L/CS/92/2021 and on 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 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 the plaintiff’s Fearless energy drink until the interlocutory application for injunction is determined.
According to the Plaintiff, it owns the exclusive right to the trademark which has been a mark of identifying its market-leading Fearless energy drink brands, 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.
