africa

Court sets aside contempt suit by Rites Food against Nigerian Bottling Company


A Lagos division of the Federal High Court has set aside the committal proceedings by Rites Foods Ltd against the Nigerian Bottling Company (NBC) on alleged trademark infringement.

Rites Food had instituted contempt proceedings against NBC over alleged infringement on the trademark of its energy drinks ‘Fearless.’

Justice Ambrose Allagoa held that “the committal proceedings as initiated by the respondents against the defendant/applicant, is hereby set aside in its entirety including the issuance of all court processes and forms used by the plaintiffs in commencing the proceedings.”

Backstory

Rites Food had instituted a contempt proceeding against NBC over alleged infringement on the trademark of its energy drinks ‘Fearless.’

The plaintiff claimed that the defendants infringed on its trademark with their ‘Predator’ drink. According to them, Rites Food had been trading with the lion image since 2017 before NBC came into the market in 2020 with its Predator drink.

Rites Food then sought an ex-parte order restraining NBC from passing off its energy drink in a manner that will infringe on its brand.

The ex-parte order sought to restrain NBC from further using any sales promotion material for its Predator drink in a way that infringes on Fearless energy drink pending determination of the interlocutory application for an injunction.

What happened in court

At the resumed hearing on Wednesday, the defendants argued that the committal suit cannot be enforced since Justice Aneke’s order dismissing the suit had already been discharged on September 27.

After listening to arguments from both counsels, Justice Allagoa set aside the committal suit. He said he agreed with the principle of law that a committal proceeding by its nature is a legal enforcement mechanism used to mandate the compliance to a validly existing and enforceable order, undertaking or directive of the court.

He held thus, “I have perused the processes filed pursuant to the two applications and argument of counsels, and it is noted that the two motions brought by the first and second contemnors/applicants seek for an order setting aside the committal proceedings in its entirety.

“All parties are in tandem in conceding to the fact that the interim orders of injunction based on which the plaintiff seeks to commit the defendant for contempt, has been discharged by the court that granted the order.

“That order was discharged by my learned brother, Justice C.J Aneke on the 27th day of Sept. 2021.

“Whereas, the plaintiff/respondent argued that this court can punish for contempt for the period of the orders, the defendants/applicants argued otherwise.

“The foundation for any committal proceedings is therefore, a disobedience of a valid, existing, and enforceable order of the court.”

“The question in the instant case therefore, is whether the order of my Lord Justice C.J Aneke having been vacated on Sept. 27, is still enforceable to warrant this court to punish the alleged contemnors of the vacated order.

“My answer is that this court cannot; I am in agreement that it is trite law that the discharge or setting aside of an order of court automatically by implication, qualifies such order as a nullity or void ‘ab initio.’

“Without much ado, the motion filed by the alleged contemnors on October 15 and October 18, has merit.

“Consequently, the committal proceedings as initiated by the respondents against the defendant/applicant, is hereby set aside in its entirety including the issuance of all court processes and forms used by the plaintiffs in commencing the proceedings. This is the ruling of the court,” Justice Allagoa held.

What you should know

  • Nairametrics reported in March that NBC in a press release disclosed that the company is set to contest the court case filed by Rites Food.
  • While Rites Food is the plaintiff in the suit, NBC is the first defendant and its Managing Director, the second defendant.
  • The principle of passing-off states that no man can have any right to represent his goods as the goods of another person.
  • Passing-off is the act or an instance of falsely representing one’s product as that of another in an attempt to deceive potential buyers.
  • Rites Food’s “Fearless” came into the market in June 2017.
  • NBC’s “Predator” was introduced in June 2020.



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