Judge Paegar’s Pop Drink Violation Judgment Goes to Supreme Court

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Temple of Justice

Associate Judge Chan-Chan Paegar of the Commercial Court at the Temple of Justice has been taken before the Supreme Court to review his judgment in a disputed Pop Drink trademark infringement between BAF Corporation and the Liberia Industrial Property Office (LIPO), Ministry of Commerce and the H.K. Enterprise, a Lebanese business owned by Housseni Kessell.

The justices are yet to decide whether or not they would hear BAF Corporation’s appeal against Peagar’s ruling of 2016, in which he claimed that the Supreme Court’s opinion (Judgment) restricted him from presiding over  that matter.

The industrial Property Act of 2002, section 2(2), provides among others that, “There is hereby established a head of  the LIPO, a  Director for industrial property who shall be appointed by the president to effectively manage the affairs of the agency and enforce all the provisions of this Act. For the purpose, he is granted the police power to discharge such duties in collaboration with the Ministry of Justice, Commence, Finance and relevant agencies of government.”

Section 2 (4) also states that the head as in section 2(2) shall be entrusted with all functions relating to the procedure for the granting of patents and the registration of industrial design, marks, and collective marks and for the administration of granted patents and registered industrial designs, marks and collective marks as specified in this act and the regulations.”

Though Paegar had entertained arguments among the parties involved with the infringement accusation, he maintained that he was not clothed with the original jurisdiction to handle the matter.

Paegar quoted one of the Supreme Court’s opinions, which says: “In matters over which a government agency has been expressly given original jurisdiction, a court is prohibited from exercising original jurisdiction.

“Pursuant to the Supreme Court’s opinion, this court cannot assume and exercise original jurisdiction as has been urged by BAF Corporation,” Paegar  then emphasized.

He explained that his judgment was in BAF’s recognition of LIPO’s original jurisdiction that caused the agency to justifiably revoke its certificate issued to BAF.

Therefore, the commercial court judge said, “This court will not act to disturb the conclusion of the agency of first instance by a declaration of right.”

It was that judgment BAF challenged and appealed to the Supreme Court which is yet pending.

Before Paegar’s decision, BAF Corporation in 2015 filed before the Commercial Court a petition to declare their rights in the trademark Pop drink infringement against the Liberia Industrial Property Office (LIPO), as first defendant, the Ministry of Commerce, second defendant and the H.K. Enterprise owned by a Lebanese businessman Housseni Kessell.

BAF’s complaint argued that on March 21, 2010, they applied for the registration of the trademark and having met the requirements of the LIPO Act of 2002, obtained a registration for that trademark.

They further argued that section 43 (4) (a ) of the LIPO Act provides that the validity of a registered trademark is ten years. Also, there can only be one owner of a registered trademark in  Liberia.

In other words, two persons or entities cannot simultaneously be holders of trademark certificates for the same product under the  laws of Liberia.

Contrary to the LIPO Act, HK Enterprise obtained a trademark certificate for Pop drink in 2014, although their trademark certificate for Pop drink was still valid.

Later in their complaint they maintained that the issuance of trademark certificate by LIPO to H.K. Enterprise for the same product for which they have had trademark certificate,  had violated the industrial property act of 2003.

It was based on this that they filed a complaint with the ministry as the agency of government in charge of commerce and industry to intervene and recognize the validity of their trademark certificate over LIPO’s trademark certificate and not to allow H.K. Enterprise to sell Pop drink on the Liberian market.

While the matter was pending at the ministry, the acting director of LIPO wrote them informing them that its exclusive right to the Pop drink trademark had been resolved for the remainder of the ten years.

Subsequently, LIPO wrote BAF Corporation stating that it had revoked its trademark certificate  because the manufacturer had appointed H.K. Enterprise as its distributor in Liberia.

However, the ministry in making its decision on the complaint sent a letter to BIVAC, upholding the validity of BAF’s right to the Pop drink trademark in Liberia.

Upon hearing the information, the then Minister Axel M. Addy on October 31, 2014, wrote BIVAC requesting it to temporarily ban the importation of the Pop drink.

Besides, Addy instructed LIPO to restore the rights of BAF Corporation effective as of January 1, 2015.

Despite Addy’s letter, some senior staffers at the ministry continued to approve Input Declaration Permit (IDPs) for H.K. Enterprise and LIPO recognized that H.K. Enterprise was by contract the assignee and holder of the exclusive right to use the Pop drink trademark in the country.

“They were lawfully appointed by the owner of the pop drink. HK is the only person who has the exclusive right to import and distribute the product in the country and on the market,” LIPO  argued.

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