11 Jan NUTRIFOODS GHANA LTD. V TWELLIUM INDUSTRIES LTD. Suit No. GJ/0103/2023, Judgment delivered on 18th December 2023
“It is the considered opinion of the court that the Plaintiff failed to call any of the Suppliers and/or customers because it seriously did not believe that the public (suppliers/customers) are confused between the Plaintiff’s Royal King Cracker biscuits with that of the Defendant’s Alpha Cracker biscuits. In fact the Plaintiff’s allegation of such confusion, with respect, is borne out of fear of competition.”
Nutrifoods Ghana Ltd (“the Plaintiff”), a Ghanaian food manufacturing company, alleged that Twellium Industries Ltd (“the Defendant”), a company also registered in Ghana, had engaged in unfair competition by launching a biscuit named “APLHA CRACKER” with a packaging design strikingly similar to the Plaintiff’s “ROYAL KING CRACKER”. The Plaintiff claimed that they had put a lot of effort into creating a special appearance (GET-UP) for their ROYAL KING CRACKER Biscuit. This included a red background with the name “KING CRACKER” in white, a bicolored band (blue and white) in an arc shape, and a yellowish image of the crackers with strawberry and wheat strips. According to the Plaintiff, this unique design made their KING CRACKER biscuit stand out from others. The Plaintiff contended that the imitation in colour, font, and layout could mislead consumers into confusing the two brands. The Plaintiff further argued that this constituted unfair competition, damaging their goodwill and hard-earned reputation.
The Defendant, on the other hand, argued that the Plaintiff’s ROYAL KING CRACKER biscuit was not distinct and denied the allegations of imitation. The Defendant asserted that its APLHA CRACKER biscuit had clear distinctions, such as a different background colour, font, and additional features. The Defendant further highlighted dissimilarities in packaging, size, and content presentation making the case that the production of its biscuits could not confuse unsuspecting customers of the Plaintiff.
The Plaintiff sought the following among other reliefs;
- A declaration that the Defendant’s ALPHA CRACKER biscuit’s GET-UP constitutes a colorable imitation of the Plaintiff’s ROYAL KING CRACKER biscuit’s GET-UP and therefore constitutes unfair competition under the Unfair Competition Act, 2000 (Act 589).
- An injunction restraining the Defendant from unfairly competing by presenting ALPHA CRACKER as ROYAL KING CRACKER using a similar GET-UP.
- An order for the destruction of all ALPHA CRACKER biscuits in the Defendant’s possession.
- General damages for the unfair competition.
The main issue the court considered was whether or not the GET-UP of the Defendant’s ALPHA CRACKER biscuit is confusingly similar to the GET-UP of the Plaintiff’s Royal King Cracker and thereby constitutes acts of unfair protection under the Protection Against Unfair Competition Act, 2000 (Act 589).
The court stated that the Plaintiff needed to prove that the Defendant’s biscuit was confusingly similar to theirs and also, that this similarity could make people believe both biscuits were exactly the same. The Plaintiff had to show that the similarity was strong enough to create genuine confusion among the public, making them think the biscuits were closely connected.
The court took into consideration the various features of both products, such as packaging, colours, logos, and sizes.
Despite the Plaintiff’s claims of similarity and confusion, the court found that the Plaintiff failed to produce sufficient evidence to substantiate its allegations. The court highlighted the absence of testimony from the suppliers and customers, who allegedly claimed confusion, as detrimental to the Plaintiff’s case.
The court concluded that the Defendant’s ALPHA CRACKER biscuit was distinct and different from the Plaintiff’s ROYAL KING CRACKER biscuit, dismissing the Plaintiff’s claims of unfair competition.
A cost of Ghȼ 100,000.00 was awarded against the Plaintiff in favour of the Defendant.
Insight: To be successful in a case of unfair competition, the Plaintiff must prove two important things:
- That there is a clear and confusing similarity between their product and that of the Defendant.
- That this similarity is indistinguishable, thus causing people to believe that both products are the same.
A Plaintiff who fails to prove any of these may not be successful in his/her claim of unfair competition.
This publication may provide a summary of legal issues but is not intended to give specific legal advice. If you require legal advice, please speak to a qualified lawyer, which may include a qualified member of our legal team at B&P ASSOCIATES (email@example.com).
AUTHOR: Ernest Kofi Boateng (2023 Trainee Legal Associate)