DAIRIBORD Zimbabwe (Pvt) Ltd has petitioned the High Court seeking an order to interdict Probrands (Pvt) Ltd from infringing on its Steri milk product after the firm allegedly used bottle design, packaging and label design similar to its own product.
BY CHARLES LAITON
Through its lawyers, Messrs Sinyoro and Partners, Dairibord Zimbabwe filed a court application on September 20, 2018 arguing the move taken by its competitor, has so far been deceiving and causing confusion to the general public.
It said Probrands products were now passing off as Dairibord products.
In his founding affidavit, Dairibord’s group chief executive, Anthony Mandiwanza said his firm has been the proprietor of a sterilised milk product called “Steri Milk” for the past 35 years, whose label was originally held under trademarks 1550/94, 789/2005 and more recently 737/2016.
Mandiwanza said though unregistered, the milk bottle design and label concept has through the mentioned period acquired such a reputation in relation to Dairibord’s business that it can be said to have become distinctive.
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Put differently, he said his firm has at common law acquired rights to exclusive use of the Steri milk bottle design and concept.
“Sometime in June 2017, the respondent (Probrands) introduced its own sterilised milk product (herein called ‘the offending product’) into the market.
Be that as it may, the offending sterilised milk product so nearly resemble that of the applicant that it is likely to and has caused confusion in the market,” Mandiwanza said.
“This is particularly so because of the following features; the bottle profiles of the applicant’s (Dairibord) product and that of the respondent are similar, the bottle lines, necks and ridges of the two products are similar, the closure concepts are both blue in colour, although that of the offending product is much darker.”
As if that was not enough, the label size, placement position and design concept of his firms’ product was now similar to Probrand’s product, he added.
“The labelling concept follows the same design colour that is, sky blue, green, white, black and red.
Applicant humbly takes the view that the respondent’s use of a bottle design and labelling concept similar to that of its own sterilised milk product constitutes an act of passing off under common law in that the respondent’s milk is creating a misleading representation that the business of the respondent is that of the applicant,” he said.
Mandiwanza also said it is now very easy for a customer to mistake Probrand’s milk as being the same one, related to, or from the same source of that of Dairibord Zimbabwe hence an application for an interdict.
The matter is still pending.