OK Foods Limited has slammed Cadbury UK Limited (the parent company of Cadbury Nigeria Plc) with a N260 million lawsuit following Cadbury‘s constant claims of trademark violation by the plaintiff.
According to the suit, the plaintiff is contesting Cadbury UK Limited’s claim that the generic trade dress, colours, and shapes used in the production of TomTom candy sweet, are also used by OK Food Limited in the production of its own candy sweet – Top Mint.
Joining in the suit as co-defendants are the Nigerian subsidiary of Cadbury UK Limited (i.e., Cadbury Nigeria Plc) and Registrar of Trademarks.
More Details: According to the counsel to OK Food Limited, Peter Shobiye, the company applied for the registration of the trademark Top Mint on April 15, 2005 and was issued the certificate of Trade Mark RTM 73440 by the Registrar of Trademarks. For over thirteen years, the Top Mint brand has existed in Nigeria.
Shobiye also stated that his client (Ok Foods Limited) has, over the years, allegedly been constantly harassed and “threatened” by Cadbury who claim that its trademark has been infringed upon.
The plaintiff went further to contend that Top Mint is not similar nor could it be confused with TomTom, neither could it be deceptively attributable whether orally or visually. Therefore, Cadbury cannot claim sole ownership of the black and white combination in the candy/confectionery industry as the black and white colour was generically used colour combination in the candy/confectionery industry. Many other manufacturers using the two combinations.
The Defence’ Position: Meanwhile, the defence counsel, led by Barrister Phoenix Unuigbe, stated that Cadbury UK Limited was the registered proprietor of the TomTom brand with trademark registration 248430516449327 at the Trademark Registry. He further argued that Cadbury Nigeria Plc had exclusively manufactured and had been associated with the TomTom brand since 1970.
The defendant denied that Top Mint candy was distinctive and not confusingly similar to any other brand of candy in the market. Further, the defendant alleged that it was discovered in September 2018 that the Top Mint candy was being sold in the market with a similar black and white stripes as its Tom Tom strong menthol candy.
The defendants are also urging the court to order the plaintiff to pay them the sum of N5 million as general damages and interest on same from January 2019 at the rate of 21% per annum until the judgement is passed and thereafter, at the rate of 20% per annum. It also wants the plaintiff to pay the sum of N10 million as the cost of defending the suit.
Justice Oluremi Oguntoyinbo of the Federal High Court, Lagos has fixed July 21 for the hearing of the case.
