NUTRIFOODS GHANA LTD. v TWELLIUM INDUSTRIES LTD.
December 18, 2023
Areas of Law
- Intellectual Property Law
- Commercial Law
- Evidence Law
- Civil Procedure
December 18, 2023
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KWASI ADJENIM-BOATENG J.
As a preliminary comment, I would like to commend the learned counsel for parties for their industry by their written addresses to the court which significantly and tremendously impacted on the judgment of the Court. The Court is grateful to the learned counsel.
A. INTRODUCTION
1. It is respectfully and respectively stated in sections 1 and 2 of the Protection Against Unfair Competition Act, 2000 (Act589) as follows:
1. Causing confusion with respect to another's enterprise or its activities (1) An act or a practice, in the course of industrial or commercial activities, that causes, or is likely to cause, confusion with respect to another person's enterprise or its activities, in particular, the products or services offered by that enterprise, constitutes an act of unfair competition.
(2) Confusion may, in particular, be caused with respect to (a) a trademark, whether registered or not,
(b) a trade name.
(c) a business identifier other than a trademark or trade name, (d) the presentation of a product or service, or
(e) a celebrity or well-known fictional character.
2. Damaging another person's goodwill or reputation
(1) An act or a practice in the course of industrial or commercial activities, that damages or is likely to damage the goodwill or reputation of another person's enterprise or its activities constitutes an act of unfair competition, whether or not the act or practice causes confusion.
(2) Damaging another person's goodwill or reputation may, in particular, result from the dilution of the goodwill or reputation attached to
(a) a trademark, whether registered or not,
(b) a trade name.
(c) a business identifier other than a trademark or trade name, (d) the appearance of a product,
(e) the presentation of a product or service, or
(e) a celebrity or well-known fictional character.
Armed with and fortified by the provisions of the said Act 589 mentioned supra, the Plaintiff instituted the present action on the 31st of October, 2022 against the Defendant and subsequently pursuant to Order 16 rule 1(1) of the High Court Rules (Civil Procedure) Rules, 2004 (C.I. 47), filed an Amended Writ of Summons and Amended Statement of Claim on 10" November, 2022, for the reliefs endorsed thereon as follows:
(a) A declaration that the GET-UP of the Defendant's ALPHA CRACKER Biscuit is a colourable imitation of the GET-UP of Plaintiff's ROYAL KING CRACKER Biscuit intended to pass off the Defendant's ALPHA CRACKER Biscuit
AI Generated Summary
This High Court decision by Justice Kwasi Adjenim-Boateng concerns a claim of unfair competition under Ghanas Protection Against Unfair Competition Act, 2000 (Act 589). The plaintiff, a Ghanaian food manufacturer of ROYAL KING CRACKER biscuits since 2014, alleged that Twellium Industrial Company Ltd.s ALPHA CRACKER biscuits launched in October 2022 used a colourable imitation of the plaintiffs red GET-UP, causing confusion and damaging goodwill. The plaintiff sought declaratory and injunctive reliefs, delivery up for destruction, damages, and costs. The defendant denied similarity, highlighted distinctive features (name, logos, colour shades, size, ingredient and origin markings, four perforated crackers, blue-yellow strand, McBerry branding), and produced market examples of other red-packaged crackers. Applying the burden and standard of proof and the likelihood-of-confusion test, the court held the plaintiff failed to prove confusion or goodwill damage, notably by not calling suppliers or customers who supposedly reported confusion. Comparing exhibits, the court found the products distinct, dismissed the claims, and awarded costs of GHC 100,000 to the defendant.