Trademark infringement case: Court sets aside Rite Foods’ exparte order against NBC, stays suit

A Federal High Court sitting in Lagos, on Monday, delivered ruling in the trademark infringement suit instituted by Rite Foods Ltd against Nigerian Bottling Company Limited.  Rite Foods had in January filed the suit against NBC, alleging the passing off of its Fearless Energy drink by NBC’s Predator Energy drink and had obtained an exparte order of injunction purporting to restrain the continued marketing and promotion of the Predator Energy Drink. Rite Foods filed the suit notwithstanding the pendency of a prior suit before the Federal High Court in Suit No. FHC/L/CS/1794/2020 between NBC and Monster Energy Limited as plaintiffs against Rite Foods Limited as defendant.  

In the prior suit, NBC/Monster Energy had requested the court to declare that their Predator Energy drink does not pass off Rite Foods’ Fearless energy drink. However, whilst NBC/Monster Energy’s suit was pending, Rite Foods initiated another suit before Justice Aneke of the Federal High Court.

At the resumed hearing of Rite Foods’ suit on Monday, the Court upheld  the objection  filed by NBC/Monster Energy’s counsel, Mr. Mark Mordi and whilst suspending further hearing of   Rite Foods’ case, proceeded to nullify the exparte order obtained by Rite Foods against NBC in February 2021.  The Court held that there was a substantial overlap in the issues in dispute and the questions submitted for determination in both suits, adding that there was a risk that conflicting decisions would be reached in both suits and that orders made in the context of one suit could potentially affect the other. 

It will be recalled also that Rite Foods had in April, relied on the exparte order and initiated contempt proceedings against NBC and its Managing Director, alleging a violation of the exparte order. With the nullification of the exparte order, it remains to be seen how Rite Foods intends to progress its contempt proceedings. 

NBC continues to assert that there has been no trademark violation or passing off with its Predator Energy drink, saying Predator logo had been in existence and in use in many markets outside of Nigeria even prior to the launch of Fearless by Rite Foods in the Nigerian market.