Several Kenyan companies are in court after lodging or battling lawsuits related to trademarks and brands in the race for a larger market share.
The disputes stem from use of identical business names, similar brands, product names, words, colours, packages and designs.
In court, warring parties mostly accuse each other of fraud, deception, confusing and misleading customers through use of similar words, packaging of the product, and general outlay.
Smart Business looks at some of the cases:
1. High Flyer Services & Publishers Limited Vs ‘High Flyer Series’
Former business partners, Peter Mwangi Gichuki and Anthony Kiai (now Mukurweini MP) are tussling over the trademark High Flyer Services and Publisher.
The legal dispute started in 2011 after they parted ways and has escalated to the Court of Appeal. In 2013 the row took a criminal turn following arrest of Mr Gichuki over alleged copyright infringement.
Mr Kiai says his company High Flyer Services & Publishers Limited is the publisher of original literary works, titled High Flyer Series Combined Encyclopaedia used by learners in primary and secondary school.
He says his firm is the owner of the copyright related to the books and, therefore, enjoys protection and is entitled and endowed with the exclusive rights to the said copyrights.
He accuses his former business partner of photocopying, rebranding, and reproducing the books for sale thus denying him revenue.
But Mr Gichuki asserts that he incorporated Mr Kiai into his publishing business in 2004 and formed a company known as High Flyer Services Ltd that saw the launch of the High Flyer Series book.
2. Premier Food Industries Vs Triclover Industries
Two juice makers, Premier Food Industries and Triclover Industries, are fighting to protect their interests in the multibillion-shilling beverage industry.
They are also squaring it out at the Court of Appeal where Triclover is seeking to overturn a High Court order to withdraw its product from the market and pay a Sh5 million penalty.
The dispute started in 2015 after Premier Foods sued Triclover over manufacturing, distribution, and sale of a beverage drink known as Clover Lime Cordial Juice.
Premier contends that the drink, manufactured by Triclover, mimicked it’s (Premier) lime juice which was being marketed under the trademark Pep Lime Juice Cordial.
Mr Morris Kimathi, sales manager at Premier (makers of Peptang), told the court that visual representation of the Triclover’s lime juice product was deceptively and craftily similar to that of the Premier’s lime juice, which was being marketed under the trademark Pep Lime Juice Cordial.
That the appearance of the Triclover’s product was likely to deceive and cause confusion to Wanjiku by passing off as the Premier’s.
He said a search at the relevant registry revealed that Triclover had its own Trade Mark distinct from that of Premier.
However, he claimed,Triclover diverted from the use of its lawfully registered trademark and opted for a get-up almost identical to Premier’s.
In the pending appeal, Triclover wants to overturn the decision of the High Court’s to stop it from manufacturing, distributing, and selling the beverage drink.
The High Court found it was more intriguing that the trademark used by Triclover on its bottles in supermarkets is not the same one it registered with the Kenya Industrial Property Institute.
The logo that Triclover registered for its lime juice has a blue background with the name Clovers in white lettering against a red background with a yellow ring around it.
“The only reason Triclover would run away from their own registered mark, which was different and distinct from the Premier Food registered mark, is because they intended to misrepresent its goods as those of Premier Foods by confusing the public and passing off their product as that of the Premier Food,” Justice Maureen Odero said.
“An average customer would not in my view be able to easily differentiate between the two products.”
Registrar of Trademarks Eunice Njuguna confirmed to the court that the mark Triclover had registered was not the same one that appeared on the bottle.
3. Kevian Kenya Limited (KKL) and Squishy Drinks Limited (SL)
Still in the beverages sector, another pair of juice makers Kevian Kenya Limited (KKL) and Squishy Drinks Limited (SL) are exchanging punches over a trademark in what is emerging as a war within the growing juice market segment buoyed by increasing numbers of young population and fierce competition.
The genesis of the trademark dispute is a business merger agreement entered by the two companies in October 2018.
The pair had agreed that the merger would be through consolidation of the manufacturing process and the creation of a new entity, which was to be known as Squishy Distribution Limited.
The new entity was for the sale and distribution of the juice, known as SQUISHY a brand that was targeting children.
But SL later sought termination of the merger on the ground that Kevian Kenya Limited (KKL) delayed on its part to the agreements, a move that set the stage for the legal battle on who owns the trademark ‘Squishy’.
4. Homegrown Millers Limited and Capwell Industries Limited
Two maize millers have locked horns at the High Court Commercial Division over ownership of a maize flour brand.
Homegrown Millers Limited and Capwell Industries Limited are fighting over the brand name Pamoja Maize meal.
The case was filed at the High Court in Milimani by Homegrown Ltd, seeking to stop Capwell from using the brand name on its products.
It wants the court to restrain Capwell and its agents from “distributing, selling, offering for sale, advertising, marketing, stocking, or otherwise dealing with maize meal whatsoever under the brand name Pamoja Maize meal contained in packing with a similar get-up, logo, colour scheme, trademark, and pictorial representation” to the Homegrown’s.
Through its official George Kamau Wanyoike, Homegrown says the infringement of its trademark is causing it irreparable damage.
He says Homegrown’s product sold at Sh1,350 per bale while Capwell’s at Sh1,250. According to Mr Wanyoike, the price difference was eroding Homegrown’s market due to under-pricing.
Homegrown contends that it registered its trademark Pamoja Maize Meal on October 28, 2015, and is set to expire on October 28, 2025.
Capwell, on its part, says, it first registered its Pamoja Maize Meal brand as its trademark with the Registrar of Trademarks on May 24, 2005, for 10 years that expired on May 24, 2015, after which it sought a renewal for a further 10 years set to expire in the year 2025.
Capwell’s case is that since it was the first to obtain registration of the trademark in the year 2005 it has the exclusive right and use of the trademark.
In 2019, Capwell was embroiled in another trademark dispute with regional miller Unga Limited over the names Amaize and Do Amaizeing with Hostess.
Unga said it was the legitimate owner of the Trademark described as Do Amaizeing with Hostess for which it had applied for registration.
It also said it is the registered owner of Copyright Works in artistic work Do Amaizeing with Hostess. It tabled the certificate of registration of Copyright works dated April 10, 2017.
Capwell denied the allegations and said there was no passing off as alleged, in that the two brands of maize flour being Hostess and Amaize are distinct as evidenced by the comments from social media and the Unga’s affidavits.
Thus the Trademark Amaize does not infringe on plaintiff’s trademark Hostess. Further that the alleged copyright work entitled Do Amaizeing with Hostess is a slogan and not a copyright.
The court dispute was suspended pending determination of the same by the Registrar of Trademarks.
5. Mabati Rolling Mills Limited and Royal Mabati Factory Limited
Two iron sheet manufacturers, Mabati Rolling Mills Limited (MRM) and Royal Mabati Factory Limited are at the Court of Appeal fighting over the trademark for a colour-coated iron versatile brand.
Royal is fighting a High Court judgment that ordered it to pay MRM Sh2 million as damages and erase or varying of the trade mark known as Royal Versatile.
The judgement dated April 20, 2020, also required Royal to deliver up an account of its profits and payment to Mabati.
The execution of the judgment was, however, suspended pending determination of the appeal. BY DAILY NATION