The Nigeria Bottling Company (NBC) has been dragged to court for alleged trademark infringement on its energy drink, Predator , with a mark similar to the well-liked market leader, a product of Rite Foods Limited.
As contained in the ThisDay and Guardian newspapers editions of Friday, 19th of March, 2021,contempt proceedings have been commenced against the managing director of NBC by Rite Foods Limited at Federal High Court, in lkoyi, Lagos.
In the suit No: FHC/L/CS/92/2021, the plaintiff, Rite Food Limited, filed a motion ex parte of 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.
The infringement is against the holder’s right of Rite Foods Limited, as the exclusive owner of the mark for identification of its products within the country.
Investigation reveals that the Rite Foods’ Fearless energy drinks, which consist of the Red Berry and Classic brands, were launched into the Nigerian market on June 15 and 16, 2017, respectively, and has gained a wider market share before the NBC’s Predator, which made entrant in June 2020.
Rite Foods pointed out that with the infringement by NBC, consumers are likely to assume (mistakenly) that the aforementioned energy drinks in the case are from one source.
According to it, the degree of similarity between the lion symbol on its Fearless brands and the NBC’s Predator energy drink is high, and that since both compete in the same market spectrum, the mark is likely to cause confusion in the minds of consumers, about the source or sponsorship of the brands offered under the defendant’s mark.
Further proceedings for the case at the Federal High Court are slated for March 24, 2021.
However, while the Predator brand is struggling to gain acceptance among consumers, Rite Foods’ Fearless energy brands has attained a very high market share of the lucrative beverage market, cutting across the different demographics, mainly the youth segment.
The Fearless brands provide consumers limitless benefits and contain high quality ingredients.
The energy drinks contain Vitamin B6, a water-soluble nutrient that is part of the vitamin B family, which supports adrenal function, helps calm and maintain a healthy nervous system, and are necessary for key metabolic processes. Also, included is Vitamin B12 which is essential for building blood cells and maintaining healthy nerve cells in the body.
Few cases of trademark infringements in the country were those of Nabisco Inc., v Allied Biscuits Company Limited in 1998, where the trademark RITZ was the issue before the court.
Allied Biscuits first registered the mark eight months before Nabisco, and the court held against the appellant, Nabisco, on the premise that it has not used the mark sufficiently to acquire a reputation for the mark in Nigeria, that its intention is to destabilise the Nigerian market and her economy.
Also on October, 18, 1993, Pfizer dragged Iyke Merchandise to Court for infringing on its trademark, Combantrin Plus, with the mark Combatinrein, which was likely to confuse consumers.
The plaintiff’s (Pfizer) action for injunction, order of delivery up for destruction of the infringing product (Combatinrein) and general damages succeeded.
By SIMBIAT ATINUKE AKINOLA
The fact of the release of amendments to the National Broadcast Code by the new National Broadcasting Commission is no longer news. The NBC, in the 6th Code, stated that the amendments were made to maintain and promote healthy competition among broadcast services and ensure there is no misuse of monopoly in the absence of competition.
Looking at the code as a whole body of subsidiary legislation, I believe it has many well thought out aspects and will certainly, encourage the production/promotion of local content and create employment opportunities aplenty.
For example, Section 3.18.3 of the code, which addresses the issue of copyright states: “The broadcaster shall obtain the appropriate license from the owner or exclusive licenses sufficient to authorize the use contemplated and shall pay all applicable license fees and /or exclusive licensee of the copyright.”
Copyright administration in Nigeria, everybody knows, is akin to a joke. Even the NBC is aware that most content providers hardly get proceeds for any content originally created, largely because of lack of digital monitoring of the use of such content or facility to flag down unsolicited or illegal use of such work.
There is also a huge lack of professionalism in the broadcast circles among practitioners, who just download content for reuse without recourse or credit to the content creator. Hardly does anyone seek permission before the use of such content.
The new code, in this aspect, looks well considered and has highlighted loopholes in the current scheme of things in the industry, especially payment of royalties.
That is where the feelgood factor ends. In the same aspect, there are grey areas. For instance, the NBC, which recognizes the right to ownership of content, has gone ahead in other sections of the code to strip the broadcaster of the ownership rights to own its content, seeks to legislate who to share content with and going ahead, somewhat drunkenly, to claim the power to determine the scale of royalties payable to content owners-for their content!
This comes across as hypocritical and totally contradictory. These are directives in the code that calls for urgent attention and monitoring before they come into effect. This has been pointed out by prominent figures in the creative space. The latest among such interventions is that of
Nobel laureate, Professor Wole Soyinka. In a short article that circulated on Tuesday, Soyinka said the code is a declaration of “war against the Arts and producers of art works”.
“I think it is about time the government comes out openly and admit that it has declared war against the Arts and its producers, instead of its present tactics of piecemeal attrition,” he wrote.
He noted that Nigerian authors are just beginning to get a reprieve from the action of Ministry of Youth Development and Sports, which teamed up with book pirates to provide a free-loading portal for the works of Nigerian authors.
Soyinka described the new broadcast code as a “regulatory hit against the cinema and video enterprise, and its operators.” I agree with the description and his characterisation of the code as backhanded censorship. Reading him also made me happy that he views the code as an act of economic sabotage. Since the conversations around the code began, I have also followed Chris Ihidero, a man Soyinka referenced. I recommend his article, Why Does NBC Want to Kill Local Content in Nigeria? to everyone keen on seeing the broadcast industry survive and thrive.
The NBC needs to be told that industry reforms should be holistic and must include stakeholders’ input. Going into a coven with members of a mutual admiration society and re-emerging with amendments meant for all is unacceptable.
The Independent Corrupt Practices and Other Related Offences Commission (ICPC), on Wednesday, re-arraigned Ishaq Modibbo-Kawu, the suspended Director-General (D-G) of the National Broadcasting Commission (NBC) at the Federal High Court, Abuja.
Modibbo-Kawu is facing a five-count charge bordering on fraud and abuse of office.
He was re-arraigned alongside two other defendants: Dipo Onifade and Pinnacle Communications Limited, due to an amendment to the earlier 12-count charge preferred against them.
The prosecuting counsel, Mr Henry Emore, said that the amendment was sequel to a directive from the court to remove the name of one of the defendants, Mr Lucky Omoluwa because he is now deceased.
When the charge was read to the two defendants, they pleaded not guilty just as a no-guilty plea was entered for Pinnacle Communications.
The prosecutor informed the court that besides the re-arraignment, the defendants were supposed to open their defence.
Counsel to Modibbo-Kawu, Mr Adetayo Adeyemo, however, told the court that his client had filed an application for a stay of proceedings in view of the court’s ruling on his no-case submission.
He said that his client had filed an appeal in respect to the ruling which was currently pending at the Court of Appeal.
Also, the counsel to Pinnacle, Mr Abayomi Oyelola, told the court that he had filed a similar application in view of the ruling on the no-case submission delivered by the court.
Similarly, the counsel to Onifade, Mr Alex Iziyon, told the court that his client had filed an application challenging the provisions of Section 306 of the Administration of Criminal Justice Act, (ACJA).
The prosecutor who acknowledged that he had received all the applications filed by the defendants, said that he intended to oppose all of them.
He told the court that he needed at least two weeks to reply to do that.
The trial judge, Justice Folasade Giwa-Ogunbanjo, adjourned the matter until Sept. 28 saying the court would commence its annual vacation on July13.
The charges against the defendants bordered on abuse of office, money laundering and misleading a public officer with the intent to defraud the Federal Government.
The offences, according to the ICPC, contravened Section 26 (1) (c) of the Corrupt Practices and Other Related Offences Act, 2000 and are punishable under Section 19 of the same law.
One of the charges read in part; “That you, Ishaq Modibbo-Kawu, and Dipo Onifade sometime between December 2016 and May 2017 in Abuja, within the jurisdiction of this court, conspired with each other to use the position of Ishaq Modibbo-Kawu, as Director -General of the NBC to confer corrupt advantage on Lucky Omoluwa, (now deceased) by recommending to the Minister of Information to approve payment of the sum of N2.5 billion to Pinnacle Communications Limited, a private company as ‘Seed Grant’ under the Digital Switch-Over Programme of the Federal Government of Nigeria when you knew that the said company was not entitled to receive such grant and thereby committed an offence contrary to Section 26 (1) (C) and punishable under Section 19 of the Corrupt Practices and Other Related Offences Act, 2000.”
Chairman of Copyright Society of Nigeria (COSON), Mr. Tony Okoroji, has described as unenforceable some of the provisions in the broadcast code recently released by the National Broadcasting Commission (NBC). Okoroji made his view known on his Twitter handle, @Tonyokoroji.
In the tweet, the copyright activist said some of the intendments of the new code are good, but some of the provisions are unworkable while others are unconstitutional. He stated that the NBC is attempting to overreach itself by assuming powers of the National Assembly and called for a revisit of those amendments.
“I understand the good intents of the new NBC Broadcast Code, but some of the provisions are unworkable, some even unconstitutional. The commission cannot overreach its powers and assume the powers of the National Assembly. The code needs to be revisited,” he twitted.
Many players in the broadcast industry have expressed loud disapproval of the code, which is viewed an assault on their copyright. Jason Njoku, Chief Executive Officer, IrokoTV, stated that amendments in the code that seek to limit exclusivity abridge the rights of copyright owners and have the potential to discourage investment in the sector. The same sentiment was expressed by Naz Onuzo, a movie producer, who said the NBC is wrong to seek to compel rights owners to sub-license their content.
“A lot of content Nigerian producers are rightly concerned by the removal of the exclusivity clause because exclusivity deals are the most valuable and this bit reduces the value of the most desirable Nigerian content,” he said.
Lawyers have argued that an intellectual property is exclusive to the owner and can do as he wishes with it.
According to a Nobert Chima, a lawyer, Section 44 of the 1999 Constitution gives every Nigerian the right to own moveable properties or any interest in an immovable property and the rights over such properties cannot be compulsorily taken.
He argued that though intellectual property rights are intangible but are moveable property rights, adding that the provisions on exclusivity are inconsistent with Section 1 (3) of the constitution states. The section states: “If any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency, be void.”
He also argued that Section 8 of the Copyright Act, Chapter C28 states that copyright in a broadcast shall be under the exclusive control of the owner.
“It is, therefore, safe to deduce that a broadcaster has the exclusive right to control his work and not even the government can, in anyway, control such.”