By Franklin Alli
People mark their properties, and companies have trademarks. Why? It is for easy identification.
But in recent years, the Nigerian market is awash with pass off, and copycatting, especially in the food and beverages sector.
Merriam Webster dictionary defines pass off as ”
to make public or offer for sale with intent to deceive.”
Now, pick up a bottle of Bigi Cola, and Coca-Cola. What do you find- – they are similar in colour and packaging design.
Without a careful look, you might not figure out that they are produced by different companies.
This is supported by a mild drama that happened recently at an indoor trade exhibition in Lagos.
During the event at the Landmark Center, the sales team of Rite Foods Limited, were busy serving visitors to their pavilion, free snacks ( table water, cabonates drinks, and sausages – all products of the company.)
As visitors hanged around the pavilion, munching their snacks, a man stressed his hand to one of the servers and said ” Please, give me Coke. The salesman snapped back at him: We don’t have Coke, what we have here is Bigi Cola.”
People burst into laughter.
“What is the difference? the man quipped; anyway, give me ”
Again, recently, Beloxxi Industries Limited, engaged in a trademark violation battle with Niger Biscuit Company Limited over alleged infringements of its products industrial design and packaging.
In a law-suit filed against Niger Biscuit at a Federal High Court in Lagos, Beloxxi said: “Prince Mini Cream Crackers being manufactured and sold by Niger Biscuit, is similar to its “Beloxxi Crackers and Beloxxi Cream Crackers which are registered under the Patent and Design Act and Trade Act with the Federal Ministry of Commerce.”
Beloxxi, therefore, requested that the Court “Restrain Niger Biscuit from manufacturing and selling biscuits with the brand name ‘Prince Mini Cream Crackers, and or Cream Crackers with the registered industrial design and packaging wrappers or getups.”
Also, recall the Supreme Court case of Ferodo Limited v Ibeto Industries Limited 2004 LPELR where the plaintiff, an English company are the manufacturers of FERODO brand of brake linings for motor vehicles and it is sold in cardboard packages.
They claimed in their suit that they had been marketing the product in Nigeria for 10 years preceding the suit. The defendant is a Nigerian company that manufactures brake lines in the brand of UNION SUPA brake lines. The claim by the plaintiff was that the packaging of the defendant’s product was so similar to theirs, thereby constituting an infringement of their registered trademark.
It was observed that the defendant’s cardboard package was painted in red, black, and white combination so closely resembling that of FERODO cardboard packaging.
“ Please, give me Coke. The salesman snapped back at him: We don’t have Coke, what we have here is Bigi Cola.”
The defendant in their defense stated that their design box was not distinctive to the plaintiff alone but that the colour combination was traditional to the trade of brake linings. They also denied ever using the plaintiff’s mark to pass off their product.
The trial judge held that the defendant was far off the plaintiff’s FERODO and does not in any way resemble the plaintiff’s mark and thereby found that there was no infringement.
The matter was taken to the Court of Appeal, which also affirmed the decision of the trial judge stating that it is wrong to take two marks side by side to determine whether they are identical but rather the true test is whether a person who sees it or has seen the mark is likely to confuse it with an existing one, as to confuse and create the impression that the new one trademark is same as the existing one.
The Appellant still not satisfied with the judgment further appealed to the Supreme Court where it was held in a leading judgment by Justice Dahiru Musdapher (J.S.C) that the appellants had not discharged the burden of proof placed on them by procedural law after dealing with the exhibits brought forward, the appeal lacked merits and that the appellant cannot succeed because there are clear differences between the two trademarks. The Supreme Court subsequently dismissed the appeal.
Another trend that is rife in the manufacturing industry is what Mrs. Oyeyimika Adeboye,
the Managing Director of Cadbury Nigeria Plc aptly called “Copycatting.”
Merriam Webster dictionary, says Copy -catting is one who imitates or adopts the behavior or practices of another.
We see it happening especially in the alcoholic bitters and the toothpaste industry.
Bitters are flavored extracts made from infusing herbs, seeds, bark, roots, flowers, and berries with alcohol.
Bitters made its entry into the Nigerian market in 2011 (about 10 years ago).
Kasapreko Company Limited of Ghana led in the revolution of alcoholic bitters with its Alomo Bitters brand.
The introduction of the product into the Nigerian market was so successful that Intercontinental Distillers Limited (IDL), another major player in the Nigerian beverages segment, joined much later with its Action Bitters.
Guinness Nigeria Plc followed suit with the launch of its brand, Orijin Bitters.
The industry is estimated to have worth over N32 billion and still growing, and
noticing the acceptance of bitters, Nigerian Breweries Plc also came out with Ace Roots.
Since the Kasapreko Alomo’s entrance into the market, brands like the Ginger flavored Erujeje, a product of Global Beverages Nigeria Limited; Adonko bitters, Jagaban alcoholic bitters, De Laliga, De Rok, etc, have also emerged to command significant market presence.
Toothpaste manufacturers have also caught the fever of copycatting.
When Dabur Herbal toothpaste paste was introduced into the market, other toothpaste manufacturers quickly went into the production of their brands.
Today, we have Macleans Herbal, from the stable of GlaxoSmithKline Nigeria Plc, Colgate Herbal, and other brands sitting on the shelves of retail stores and kiosks, here and there.
” One thing that we are very good at in Nigeria is copycatting. If you find out that someone is selling tomatoes, and they are buying it very well, you would find the whole Street selling tomatoes. Nobody wants to think about what he can sell to complement the tomato, maybe rice, pepper, and seasonings. No, because tomato is the big thing, all of us rush into the tomato business.”
How Manufacturers Should Think
If company A is producing XYZ, ask yourself, what can I do to complement that successful brand?
Let me use Apple as an example. Most Apple products have accessories, and it is amazing how the whole manufacturing sector has looked at what is it that an Apple phone, Ipad, need that I can provide.?
That’s how we should think. Consumers have so many choices, and you have to make sure that what you are providing is what they want, and is also affordable to them,” said Adeboye.