Energy Drink Battle: NBC’s ‘Predator’ Entangled In Trademark Infringement With ‘Fearless’

MICHAEL AKINOLA

The Nigeria Bottling Company (NBC) has been entangled in a lawsuit at the Federal High Court in Lagos, for trademark infringement on its Predator energy drink, in resemblance of the popular market leader, Fearless, produced by Rite Foods Limited.

The case with the suit No: FHC/L/CS/92/2021, filed by the plaintiff, Rite Foods Limited, on January 20, 2021, was contained in a publication in the ThisDay and Guardian newspapers editions of Friday, 19 March, 2021.

The publication also included a notice of contempt proceedings against the managing director of NBC for disobeying interim injunctions granted by the court against NBC.

It was stated that the NBC has infringed on its Get Up and Design of Rite Foods’ market leader, Fearless energy drinks, which consists of the Red Berry and Classic brands, which were produced in June 2017, before the Predator brand was launched in June, 2020.

In the lawsuit, the plaintiff filed 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.

The alleged infringement, however, negates the law, which offers exclusive rights to owners of product designs from infringements.

According to Rite Foods, it owns the exclusive right to the Get Up which has been a mark of identifying its market leading Fearless energy drink brands.

It stated that with the infringement by NBC, consumers may likely assume (mistakenly) that the energy drinks in the case are from one source.

According to the food and beverage company, 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, Combatrin 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.