East African Breweries Ltd (EABL) wants the High Court to dismiss an application by a local rival who has sought protection from the court over alleged harassment from the police over use of beer bottles.
FRM (EA) Packers moved to court in January accusing police of colluding with EABL to illegally and maliciously confiscate its beer products on claims that they were counterfeit.
The company, through lawyer Gichuki King’ara, wants the court to grant them orders stopping the police from entering its premises, confiscating its products, or arresting its agents and distributors in the guise of fighting fakes.
FRM said the raids are based on malicious allegations by KBL that the company is selling its products using its (KBL) bottles. The company argued that the bottles are universal and cannot be patented.
But in a reply filed in court, EABL and KBL, through the legal director, Ms Nadida Rowlands, dismissed claims by the rival that beer bottles are the same worldwide in terms of size, shape, and general outlook.
“There is nothing like a universal Euro bottle. All manufacturers choose their bottle design and customise their bottles to meet their unique business requirements,” Ms Rowlands said.
Ms Rowlands stated in a sworn statement that it is her understanding that FRM has the right to package its beer products in a brown bottle known as the Euro bottle.
She, however, said the rival cannot claim ownership of usage rights to bottles purchased by another manufacturer and that it has failed to demonstrate that it has ever purchased any.
Through lawyer Kamau Karori, the giant brewer said KBL purchases bottles from a leading glass maker in Kenya and it currently packages its various beers in over 10 varieties of bottles. One of the bottles used by KBL for over 40 years, he said, is one known as the Euro Amber 500ml.
EABL has also accused the rival of misleading its customers by packaging its product known as Santa King Ice, a spirit, in beer bottles. Mr Karori said this amounts to engaging in false trade description of goods.
“It is at once clear that there is nothing like a universal bottle. All manufacturers choose their bottle design and customise their bottle to meet their unique business requirements,” EABL said in reply.
EABL argued that there are several types of bottles and that they vary in size, shape and colour as well as the specifications and requirements of the manufacturer.
“FRM (EA) Packers Limited has failed to establish a threshold level that it has a valid interest in Euro bottles, since it is not a manufacturer or importer of beer. It has no legal right that this court can be called upon to protect in relation to use of the Euro bottles that are used to package beer only,” added KBL.
KBL also wants the court to dismiss the case, saying it cannot hear a matter relating to criminal proceedings and people who are not before it.
“The alleged criminal cases really revolve around the issue of quality, content, key identifiers, manufacturing, labelling and packaging of alcohol. All matters are regulated by the Standards Act,” Ms Rowlands said.
Intellectual property
FRM (EA) Packers, however, wants the court to issue orders stopping the Inspector-General of police and the Director of Public Prosecutions (DPP) from summoning, arresting or charging its employees over the sale of Santa King Ice and other products.
The company claimed EABL occupies a dominant position in the beer market and is abusing dominance in violation of section 24(2) of the competition Act.
The firm wants a declaration that the purported registration of initials EABL as a trade mark amounts to the use of an intellectual property right in a manner that goes beyond the limits of fair, reasonable and non-discriminatory use.
It further alleges that its products are duly licensed and the actions of the police and KBL are meant to stifle competition and drive them out of business.
The company maintained that Santa King Ice is sold in universal brown bottles, which are conventionally used worldwide by alcoholic beverage manufacturers.