OK Food has slammed N260 million suit on Cadbury UK Limited over the use of generic trade dresses, colours and shapes in the production of Top Mint candy produced by OK Foods and Tom Tom candy produced by Cadbury.
Joined as co-defendants in the ensuing legal hostility is the Nigeria company Cadbury Plc and Registrar of Trade marks.
In a statement of claim filed before a federal high court in Lagos, South West Nigeria by a Lagos lawyer, Barrister Peter Shobiye on behalf of the plaintiff, OK Foods limited alleged that it applied for the registration of the trademark of TOP MINT on 15 April 2005 and was issued the certificate of Trade Mark RTM 73440 by the Registrar of Trade mark and for over 13 years TOP MINT has been a popular brand with Nigerian consumers and it is strongly associated with menthol flavoured candy.
The label/ trade dress up were also approved and registered by National Agency for Food and Drug Administration and Control (NAFDAC).
However the plaintiff avers that it has been consistently harassed, threatened and intimidated by Cadbury (UK) Limited through series of cease and desist letters alleging that its TOP MINT shape, design and colours are confusingly similar and infringing on its TOM TOM and demanded that it should immediately cease further manufacturing, promotion, marketing and offering for sale of its TOP MINT menthol flavoured candy alleged by Cadbury (UK) Limited to be identical and confusing similarity toTOM TOM.
The plaintiff contended that TOP MINT is not similar nor can it be confused with TOM TOM or can it be deceptively attributable whether orally or visually, therefore Cadbury company cannot claim sole ownership of the black and white combination in the candy/confectionery industry as the black and white colour is generically used color combination in the candy/confectionery industry with many other manufacturers using the two combination.
The plaintiff avers that it has suffered huge financial losses due to the threat, intimidation, harassment caused to its business by letters from Cadbury’s solicitors threatening its business and legitimate use of its TOP MINT trademark.
Consequently OK Foods while demanding for the sum of N250 million as general damages against Cadbury (UK) Limited for the undue harassment and threat caused to its business and legitimate use of its TOP MINT, Trade Mark is also claiming the sum of N10 million being the cost of prosecuting this legal action.
The plaintiff is also urging the court to restrain Cadbury (UK) Limited and Cadbury Nigeria Plc and their agents from harassing or preventing it from legitimate use of its TOP MINT and restrain them from monopolising the use of generic trade, colours, shapes in the course of trade.
The plaintiff is also urging the court to order Cadbury (UK) Limited to issue a written letter of apology to it within seven days of the date of judgement.
However Cadbury (UK) Limited and Cadbury Nigeria Plc in their statement of defence filed before the court by Barrister Phoenix Unuigbe stated that Cadbury (UK) Limited is the registered proprietor of the TOM TOM with trade mark registeration 248430516449327 at the Trade mark registry and Cadbury Nigeria Plc has exclusively manufactured and has been associated with TOM TOM brand since 1970.
The defendant deny that TOP MINT candy is distinctive and not confusingly similar to any other brand of candy in the market as in September 2018, they discovered that the candy TOP MINT was being sold in the market with a similar black and white stripes as its TOM TOM strong menthol candy.
Consequently they instructed their solicitors in Nigeria to write a cease and desist letters to the plaintiff but denied that the letters amounted to harassment, threats and intimidation.
The defendants, by way of counter claim contended that the plaintiff is trading on the goodwill of the TOM TOM brand by adopting black and white colour patterns of its TOM TOM strong menthol candy.
Therefore Cadbury urged the court to restrain the plaintiff from further copying the black and white colour and pattern of the TOM TOM which constitutes passing off.
The defendants is 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 judgement is passed and thereafter at the rate of 20% per annum and N10 million as cost of defending the suit.