In Trademark Case, Commercial Court’s Neutrality Questioned

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A Commercial Court’s decision to lift a temporary ban that the Ministry of Commence (MOC) placed on the importation of Pop Drink into the country has raised several unanswered questions about the Court’s stance on the matter, although the case is pending before the court.

The MOC in October 2014, placed a ban on the importation of the product, based on a complaint filed by BAF Trading Corporation alleging that the Liberia Industrial Property Office (LIPO) cancelled its 10-year right granted by the LIPO and subsequently issued the exclusive right to H.K. Enterprise, a Lebanese owned business to import Pop Drink into the country. The 10 years covered 2010 to 2020.

When the matter was taken to the Commercial Court by BAF Corporation claiming that H.K. Enterprise was still importing the drink on the local market in spite of the ban, the court authorized H.K. Enterprise to continue with the importation of the product, while it hears BAF’s complaint.

Article 43 sections 1 and 2 of the 2003 Industrial Property Act say “the use of a registered mark in relation to any goods or services for which it has been registered by any person other than the registered owner shall require the agreement of the latter.”

Section two further provides that “the registered owner of a trademark shall, in addition to any other rights, remedies or action available to him, have the right to institute court proceedings against any person who infringes on the mark by using, without his agreement, the mark as aforesaid, or who performs acts which make it likely that infringement will occur.”

It also added: “The right shall extend to the use of a sign similar to the registered mark and use in relation to goods and services similar to those for which the mark has been registered, where confusion may arise in the public.”

It was based on the violation of the LIPO Act that BAF Corporation’s legal team sought the intervention of the Court to nullify the LIPO’s trademark issued to H.K. Enterprise that gave it the exclusive right to import Pop Drink, a right it (H.K. Enterprise) continued to enjoy.

In the ministry’s communication under the signature of Minister Axel M. Addy, and addressed to BIVAC for the enforcement of its mandate, which copy is with the Daily Observer, stated: “We request your compliment and write to inform you that the MOC has placed temporary ban on Pop Drink from importation into the commerce of Liberia effective Friday, October 31, 2014.”

The document further reads, “The ministry has received information from the Liberia Industrial Property Office which led to H.K. Enterprise being granted the exclusive right to import the Pop Drink thereby canceling a 10 year right granted to BAF Trading Corporation.”

The communication had it, “We understand that BAF Corporation has some issues with their oversea trading partner who supplies the Pop Drink and have instructed the Industrial Property Office to restore the right of BAF Corporation effective January 1, 2015.”

Concluding, Minister Addy assured the parties that the market is thoroughly regulated to avoid excess supply of the drink on the market without hampering fair play in the commerce of Liberia, adding, “We use this medium to intervene in the market and provide the protection of consumers and business enterprises.”

The case continues.

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