Namib Mills and Bokomo at each other’s throats
Namibia’s largest grain processing company Namib Mills (Pty) Ltd is up in arms with breakfast cereal company, Bokomo Foods Namibia for allegedly copycatting the former’s packaging style found on its Backpro "vetkoek" flour.
The company brought an application in the High Court to ban, with costs, Bokomo from selling the flour in the same packaging.
This, according to Namib Mills, is an act of “unlawful competition”.
It is arguing that its packaging color schemes, brown for brown bread, blue for white bread flour, have been copied to Bokomo’s products.
Namib Mills argue that Bokomo’s conduct is in conflict with the provisions of the Industrial Property Act 2010 (the IP Act) which provides that, “any act of competition contrary to honest practices in industrial or commercial matters is unlawful”.
Namib Mills’ commercial manager, Petrus Johannes van Niekerk, in his founding affidavit claims that they were the first to introduce the fat-cook flour in the market which saw sales going up.
He claims that this was to the dislike of Bokomo whose sale of cake flour and bread flour were “detrimentally affected” and only in August the company introduced its own version of fat-cook flour.
“Leaving aside the fact that the ratio of the cake flour to break flour in the Bokomo Foods’ product is completely different from the applicant’s vetkoek flour, what has given the applicant cause for concern is that this Bokomo vetkoek flour is not packaged in the in the get-up (style) of the other Bokomo flour products, but has adopted get-up with similarities to the Backpro range, and more importantly, has appropriated the mustard yellow colour for the slash appearing now on the Bokomo vetkoek flour product,” said van Niekerk.
He added that there is a likelihood of confusion in the market-place caused by the adoption of the packaging style for Bokomo’s fat-cook flour product.
“People have come to associate ‘vetkoek flour’ with a get-up featuring the mustard yellow slash. Bokomo Foods is not known to produce vetkoek flour. Accordingly, there is no reason why a not significant number of average consumers are likely to think that there is such a connection, after all, why should they not?” he queried.
Namib Mills this week brought the said products to court as evidence to demonstrate proof of similarity.
However, the trial failed to kickoff as scheduled while Namib Mills’ lawyers indicated that they still needed to issue a replying affidavit and another set of heads of arguments.
The reason was that they want to bring an argument based on another product whose design has also been allegedly replicated.
Bokomo was also granted time to file supplementary and answering affidavits.
The case will be heard next year between the 13th and 14th of February.
Chief executive officer for Bokomo Hubertus Hamm’s reply is that the applicant has not made a case and that its affidavit was fraught with hearsay and irrelevant information.
He also took offense of the fact that Bokomo Namibia was not cited as a party to the main proceedings.