Cassation Bench Axes Trademark Dispute


Court and Tribunals say New Flower Foam is not a translation for Addis Ababa Foam.




The long court ordeal between Addis Ababa Foam and Plastic Factory and New Flower General Trading on the issue of trademark and unfair competition reached its conclusion after the Cassation Bench rejected Addis Ababa Foam’s application for a review of judgment by the highest bench.

The legal battle began in April 2015 when Addis Ababa Foam sued New Flower Foam at the administrative tribunal of the Federal Trade Practice and Consumer Protection Authority. It claimed that the products that New Flower General Trading distributed under the brand name “New Flower” infringe its trademark right and results in unfair competition.

Addis Ababa Foam claims that it sustained 3.7 million Br losses as a result of the confusion that New Flower created by using an allegedly deceptive trademark.

Many companies use interchangeable names including Hibret Bank as United Bank, Nigd Bank as Commercial Bank, and Keste Demena as Rainbow. The company complained that it lost its market share as customers purchase New Flower products believing that they are Addis Ababa Foam products.

The company asked the court for a ruling against New Flower Foam that would forbid the company from using, selling or advertising its products under the trade name “New Flower Foam”. It also demanded the disposal of New Flower products and compensation of 3.7 million Br for the loss of its market share.

Established in 2014, New Flower General Trading is the manufacturer of New Flower Foam.

New Flower argued that there is a difference between the trademarks that the two are using and no confusion could have been created among customers. The design, words, colour and sound of the New Flower trademark is not similar to that of Addis Ababa Foam’s, the company argued.

It also added that the business name it is using is not an English version of the Amharic phrase “Addis Ababa Foam,” arguing that the name New Flower describes a plant, not the city. In addition, the English version of Addis Ababa Foam is not protected, New Flower argued.

The loss in market share Addis Ababa Foam experienced was caused by the emergence of new manufacturers producing the same foam and plastic products, according to New Flower’s response.

The administrative tribunal of the Trade Practice and Consumer Protection Authority and its appellate bench ruled in favour of New Flower, saying that the registered trademarks of both companies do not resemble each other and are not confusing.

The trademark of Addis Ababa Foam was registered at the Ethiopia Intellectual Property Office in 2007, and remains effective up to 2021.

In addition, credit facility shortages, and poor service to distributors compared to other foam and plastic manufacturers contributed to the loss that Addis Ababa Foam incurred, according to the appellate tribunal. After referencing the Trademark Registration and Protection Proclamation and the Trade Practice and Consumers’ Protection Proclamation, the Federal Supreme Court, with which Addis Ababa Foam lodged a separate complaint, also ruled that the trademarks, logos and business names of the two companies are dissimilar enough to avoid customer confusion. Addis Ababa Foam’s last effort to challenge the decision at the Federal Cassation Bench hit a brick wall after the bench rejected its application, saying that the decisions of the lower courts contained no fundamental errors of law.

“The law prohibits the registration of a trademark containing a translation of another registered trademark with respect to the same product,” a legal expert explained. “The major objective of trademark law is avoiding confusion. I don’t think New Flower is a translation of Addis Ababa that could create confusion among customers.”



By HAWAZ MERAWI
FORTUNE STAFF WRITER

Published on Dec 27,2016 [ Vol 17 ,No 869]


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