By Fidelis Nawu – Respecting trademarks, and protecting the business environment

…there is a crucial need for businesses to compete fairly without encroaching on their competitors trademarks, as this violates the law and creates unnecessary tension in the business environment. Importantly, this case must be properly ruled out by the WIPO standards.

At this moment, Nigeria’s economy is almost a basket case and faces all kinds of fiscal challenges. This is largely due to a weak production base as a fallout from the loss of oil as the largest income earner for government. Additionally, there is a weak tax regime and a growing informal sector. The proclaimed mantra of economic diversification & the shoring up productivity could not be more urgent.

It is essential to create a business environment which allows for the production and sale of goods and services. This will also ensure that business agreements are honored in a way that protects intellectual and other rights of all parties, including trademarks, as well as allow for fair and timely adjudication during periods of dispute. This is particularly important because Nigeria constantly appeals to foreign direct investments (FDIs), in order to improve the economic base.

It is evident that potential investors will be scared off by disputes between businesses regarding intellectual property rights. This is regardless of the appeals in the business sector.

Many businesses are successful in creating products and services. Their unique identities are created through branding efforts. This distinguishes them from other similar goods or services in the sector and helps them attract customers. Many times, these customers become emotionally and psychologically attached to certain businesses’ products and services, and they become brand loyalists.

This can lead to trademark conflicts and other problems when other products or services attempt to gain market share in markets where they already have loyal customers.

The ongoing dispute between Coca Cola’s manufacturers and Pop Cola’s producers has been in Kano. This case involves what Coca Cola, which is plaintiff in the case, considers the illegal appropriation its brand identity and trademark violation by Mamuda Beverages Limited. Mamuda Beverages Limited is the defendant in the case. It concerns the use of the colours white, black, and the special script and font for the name letters. Also, it refers to the dynamic ribbon device that Coca Cola has trademarked.

It is easy to see a similar use of these colours as well as the use of a ribbon in the branding of Mamuda Beverages’ Pop Cola product. This could be considered an attempt at a similar identification. Even more striking is the uncanny resemblance between the bottles of the soft drinks. People in Kano have pointed out that there is a similarity in the visual identities between the products. This has led to them choosing Pop Cola on many occasions.

It is easy to see how this could lead to conflict between the beverage companies. There appears to be a conscious effort by Pop Cola, using its similar look to erode Coca Cola’s market share. This is why the litigation has begun, with the Coca Cola Company trying to get Pop Cola’s producers to stop using the colors and other visual branding elements that have defined its flagship product throughout the ages.

Mamuda Beverages tried to counter the claims made by Coca-Cola by claiming that the litigation is more a contest war than a fight over visual identity. However, this seems more like an emotional line rather than one governed by logic, as the facts prove.

Coca Cola has been trading for more than 100 years under the brand labels that are currently being used by the competition. People around the world recognize Coca Cola because of its dominant red colour, as well as the dynamic ribbon device. This visual identity creates an emotional connection between the brand’s consumers and the brand. It has been widely adopted and has earned Coke over 50% market share both locally in Nigeria and globally.

When any other soft drink product attempts to mimic the Coca-Cola visual identity in any way, it will be subject to ethics and trademark violations. This is especially true if the product creates confusion in the consumer’s mind, which can lead them to patronize any other product that bears these elements instead of Coca-Cola.

It has been also pointed out that the elements under which Coca Cola is offered to consumers are already registered and protected by law. Coca Cola owns the Coca-Cola (Script), and Dynamic Ribbon devices, both in Nigeria and globally. These trademark numbers are 71808 and 26655. How can any product without violating business ethics and the law claim these elements of visual identity?

Businesses must be fair in their competition and not encroach on the trademarks of competitors. This violates the law and causes unnecessary tension in the business environment. A proper legal determination of this case must be made within the scope of the conventions, articles and the law. World Intellectual Property Organisation standards.

Nigeria has an opportunity to show that the government, regulators, and legal system conform with World Intellectual property Organisation standards. Our legal system is strong and fair enough to settle business disputes in a fair manner. This boosts confidence in the environment for all stakeholders. The system has the ability to make decisions on potential shenanigans.

As the substantive case in this dispute is soon to be decided, it should be of great concern to all that an amicable resolution of this and similar issues will be in Nigeria’s best interests. It will also improve the ease of doing businesses in Nigeria and allow for better access to foreign direct investments.

Fidelis Nwangwu is a public affairs analyst who writes from Abuja.