Firm Seeks Perpetual Injunction Against Coca-cola, NBC Over Alleged Passing-off

Maker of ‘Cola-Rola’ candy, Tashibo International Limited, has asked a Lagos Federal High Court, for a perpetual injunction restraining the Coca-cola Company and Nigerian Bottling Company (NBC), from taking any steps amounting to threatening, harassment, molestation and/or intimidation against it, its distributors or any of its customers, on account of the importation, sales, marketing, distribution and promotion of “Cola Rola” brand of candy, on the allegation of infringement of the defendants’ “Coca-Cola” trademark for bottled drinks.

The company also asked the court for a perpetual injunction restraining the two defendants from interfering in any manner whatsoever or howsoever with it’s business as it pertains to the importation, sales, distribution, promotion and/or marketing of the “Cola-Rola” brand of candy,

The plaintiff further urged the court to restrain the two defendants from threatening to confiscate and/or actual confiscation of it’s “Cola-Rola” brand of candies, to be found any where in Nigeria on account that It constitutes an infringement of the defendants’ ‘Coca- Cola’ trademark for bottled drinks.

The company also asked the court for a declaration that it’s product, Cola-Rola candy, does not constitute an infringement of the defendants’ “Cola-Cola”.

It also urged the court to declare that the sales or promotion of its “Cola-Rola” brand of candy has not in any manner whatsoever passed-off the goods as that of the defendants.

The plaintiff in its statement of Claims, filed by it’s lawyer, E. N. Benny Bonny, stated that it is the importer and distributor of the brand of candy known as “Cola-Rola”. And that it imports and distributes the said “Cola-Rola” candy by virtue of its agreement and collaboration with its Indian technical partner, NYRA Chocolates Private Limited (Hfp).

The Plaintiff further stated that its “Cola Rola” brand of candy is fully certified and registered with the NAFDAC. And that it has over the past three years spent tremendous amounts of money marketing and promoting the sales of the said “Cola-Rola” brand of candy.

The Plaintiff further averred that its “Cola-Rola” brand of candy has become a candy of choice among school children, who are the target consumers/market nationwide owing to its great quality. Adding that in the course of importing and distributing the above-mentioned candy it has conducted its business in a very lawful, peaceful and transparent manner without any disturbance or harassment from any person or organization/authority either private or public.

It stated that it was surprised when information reached it in late 2022 from its distributor that distributors and marketers of its “Cola-Rola” brand of candy were being harassed, molested, intimidated and harangued by officers and agents of the defendants on the grounds that “Cola-Rola” brand of candy mimics the defendants’ trademark “Coca-Cola” used for the defendants’ bottled drinks.

The Plaintiff stated that it became nonplussed and embarrassed when It received further reports from its distributors and marketers, on or about June 25, 2023, complaining of further harassments, molestations, intimidation and threats of confiscation of the “Cola-Rola” candies as well as personal arrests, by the officers and agents of the defendants, thus causing some of the distributors and marketers to close up their shops and go into hiding In fear.

The Plaintiff stated that it’s immediate investigation confirmed the above reports to be true, as its officers found some of the its distributors’ shops in the Ebute Ero market, Lagos island area, locked up by the distributors out of fear of personal arrest and confiscation of the “Cola-Rola” candies stored in their shops.

With the above narrations, the plaintiff stated that it considered a formal report to the Police and the various market chairmen on the defendants’ harassment and intimidation as mentioned above escalated and got to its peak on June 20, 2023, when the defendants through their solicitors formally wrote the Plaintiff demanding the Plaintiff to immediately cease and desist from the importation, sales, distribution and marketing of the “Cola-Rola” brand of candies as same constituted an infringement of the defendants’ Coca-Cola” trademark for bottled drinks.

The plaintiff also stated that the defendant’s solicitors’ letter also demanded it to immediately cease and desist from the sale, promotion and distribution of another brand of candy referred to as “FANTOP”,

The Plaintiff avers that whilst it does not deal in the brand of candy referred to as “FANTOP”, it stated also states that its “Cola-Rola” brand of candy bears no similarity in any form or manner with the defendants “Coca-Cola” trade mark for bottled drinks. And that it pleads a real jar of the “Cola-Rola” candy and also a real bottle of the defendants’ “Coca-cola” bottled drink.

The Plaintiff further pleads a photograph of the its “Cola-rola” brand of candy as well as a photograph of the defendants’ “Coca-Cola” bottled drink. Adding that there is no correlation between candies and bottled drinks, stating that ‘Under the Trademark Act candies grouped as confectionery belong to class 30 while bottled drinks grouped as beverages belong to class 32′.

The plaintiff also stated that contrary to the defendants’ letter, it is not in any way passing-off and has never passed-off the the defendants’ goods, as there is no relationship between candies and bottled drinks. Adding that there is no competition between bottled drinks and candies as their patrons and target markets are different and distinct.

The Plaintiff stated that the incessant and unbridled harassment, intimidation, molestations and threats by the two defendants has affected and still affecting the Plaintiff’s business adversely.

The plaintiff enumerated the adverse effects of the defendants’ action on its business as follows. “lot of the its distributors have been forced to lock up their shops and outlets out fear of arrest and/or confiscation of the stock of “Cola Rola” candies within their shops and stores.

“There has been a drastic reduction in the sales of the “Cola Rola” brand of candies by reason of the defendants’ hostile actions thus causing the Plaintiff to record huge financial losses.

“Large quantities of the “Cola-Rola” brand of candies in it’s stock are now close to their expiration period due to low sales occasioned by the inimical activities of the Defendants.”

The Plaintiff states that owing to the activities of the two defendant, it has suffered damages and losses and would continue to suffer losses and damages, if the defendants are not restrained by the Court.

The court at the the last hearing of the suit, the presiding judge, Justice Chukwuejekwu Aneke, ordered that the first defendant, the Coca-cola and Company, whose office is United States of America USA, be served with all the processes by substituted means.

The judge made the order while granting an Exparte motion, filed and moved the the plaintiff’s lawyer.

The two defendants are yet to file any response to the suit.

Meanwhile the matter has been adjourned to October 23, 2023, for report of service.