‘Fearless’ vs ‘Predator’: Rite Foods indicts NBC for trademark infringement

*Rite Foods Limited, producers of ‘Fearless’ energy drinks, institutes a legal action against Nigerian Bottling Company Limited, claiming its product first launched into the Nigerian market with a wider market share before NBC’s ‘Predator’ made entrant into the market, to purportedly cause confusion in the minds of consumers to assume both energy drinks are from same source

Isola Moses | ConsumerConnect

For alleged infringement on its trademark, Rite Foods Limited has filed a legal suit against the Nigerian Bottling Company Limited before the Federal High Court, in Lagos.

The plaintiff, Rite Foods Limited, had filed a motion ex parte 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 an injunction is determined, The Sun report said.

The plaintiff alleged that trademark infringement of its product by NBC negated the common law property right in the goodwill of “Fearless” energy drinks and Trademarks Act, Cap T 13, Laws of the Federation of Nigeria 2004, which offers exclusive rights to get ups and designs of products already in use by it, report stated.

In an affidavit attached to the suit, the plaintiff noted that Rite Foods’ “Fearless” energy drinks, which consist of the Red Berry and Classic brands, were launched into the Nigerian market June 15 and 16, 2017, respectively.

According to the foods company, the product has gained a wider market share before the NBC’s “Predator’ brand which made entrant into the market June 2020.

Based on the time factor, the plaintiff claims that the trademark has been in use by the Rite Foods’ brands before NBC’s “Predator” drink was launched into the market.

The plaintiff further claims that it owns the exclusive right to the get-up which has been a mark of identifying its “Fearless” energy drink brands.

With the infringement by NBC, consumers are likely to assume (mistakenly) that the aforementioned energy drinks in the case are from one source, said Rite Foods.

According to the company, because of the degree of similarity between the ‘lion symbol’ on its “Fearless” brands and NBC’s “Predator” energy drink is high, and considering the fact that 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.

The court has adjourned further hearing in the case till Wednesday, March 24.