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Trademark Infringement: Court Hears Rite Foods Suit Against NBC Nov. 15

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The Federal High Court, sitting in Lagos has fixed November 15 for the hearing of Nigerian Bottling Company (NBC) application, seeking to quash contempt and committal to prison, (forms 48 and 49) proceedings filed against it’s Managing Director, Mattieu Seguin, by Rite Foods Nigeria Limited, over alleged trademark infringement of its products.

Rite Foods through its lawyer, Muyiwa had dragged NBC and it’s Managing Director, Mr. Seguine, before the court in a suit marked FHC/L/CS/528/2021,for allegedly ‘passing off’ it’s Fearless energy drink logo.

Rite Foods had on February 9, 2021, through an Exparte application marked FHC/L/CS/92/2021, asked the court for an order restraining NBC from further promoting its Predator Energy drink in the Nigerian market, the application which was granted by Justice Chukwujekwu Aneke.

While the Expart Order subsisting, NBC was alleged to have refused to comply with the order, consequent upon which Rite Foods Limited, filed both Form 48 and 49 against NBC and it’s Managing Director, Mr. Seguine.

However, NBC counsel, Mr. Opasanya (SAN) filed application challenging the Exparte order, and a motion to quash the the proceedings.

At the resumed proceedings on Wednesday, NBC’s Managing Director, Mr. Sequin, the alleged contemnor, Mr. Oluseye Opasanya (SAN), told the court that he has an application dated October 18 and filed on October 21, 2021, seeking to quash the contempt against his client.
Opasanya (SAN) also informed the court that Justice Aneke had discharged the Exparte order made against his client on September 17, 2021.

He added that he expect counsel to the applicant, Rite Foods Limited, to be upright and end the litigation.

Opasanya (SAN), prayed the court to set aside or dismiss the entire suit. He said; “the most appropriate thing is that since the contempt proceedings has been discharged is to dismiss the entire suit”.

He also asked the court for a short adjoumment to enable him study responses filed to his client’s applications.

Responding, Counsel to the Rite Foods Limited’s, Mr. Ogungbenro, while confirming that Justice Aneke had discharged the Exparte order, however, told the court that the business of the day was hearing of all applications in the suit.

He also told the court that what his client has in the other suit is not a Contempt proceedings, but the main substantive suit.

Ogungbenro however, opposed the request for adjoumment by counsel to NBC’s Managing Director. He told the court that he received Seguin’s processes on Friday and he responded on Monday.

He consequently asked the court to refused the adjoumment.

Also, counsel to NBC, Mr. M. Mordy, also told the court that he has an application seeking to quash Rite Foods’ application, adding that he also needed time to respond to the counter affidavit filed by Rite Foods Limited.

The presiding judge, Justice Allagoa, conceded to NBC’s request for adjoumment and adjourned the matter till November 15, for hearing of all pending applications.

The contempt proceeding is an offshoot of a claim filed by Rite Foods alleging passing-off by NBC of its Fearless energy drinks.

In the claim before Hon. Justice Aneke, Rite Foods obtained interim injunctions against NBC to stop it from advertising or promoting its Predator energy drink in a manner that is capable of infringing on its Fearless energy drinks. Rite Foods alleges that NBC and its Managing Director, Mathieu Seguin disobeyed the interim order.

By the contempt proceedings, Rite Foods is seeking orders committing NBC’s managing director to prison until the company obeys the injunctions.

It would be recalled that the passing-off case came to light sometime in March 2021 in Suit No: FHC/L/CS/92/2021 at the Federal High Court, Lagos. Form 48 was published on Friday, March 19, 2021, in ThisDay and Guardian Newspapers. Rite Foods alleges that NBC has infringed on its trademark with its Predator Energy drink, which has adopted a lion head in resemblance to the mark on its Fearless energy drinks brand.

Rite Foods claims that it has been using and trading with the lion image since 2017, three years before the NBC’s Predator came into the market in 2020.

The report also contains notice of consequences of disobedience of court order issued to NBC’s Managing Director and an ex parte order restraining the company from 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

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