7 December 2018

Namibia: Vetkoek Fight in Court

VETKOEK is a serious matter in Namibia, scores of the country's street food vendors would agree - so serious that two heavyweight companies who are rivals in the flour business have now landed in court in a battle over vetkoek flour and the packaging in which their competing products are being sold to consumers.

A mustard yellow colour used on the packaging in which Namib Mills has since January this year been selling vetkoek flour under its Bakpro brand signifies the flour as a Namib Mills product, and its competitor Bokomo Namibia's use of a similar colour on its brand of vetkoek flour would create confusion in the minds of consumers, Namib Mills is claiming in a case it has filed against Bokomo Namibia in the Windhoek High Court.

By using a similar colour for its brand of vetkoek flour, which came onto the market seven months after the Bakpro product, Bokomo Namibia is trying to capitalise on and benefit from Namib Mills' product, the company's commercial manager, Pieter van Niekerk, is alleging in an affidavit filed at the court.

Van Niekerk further claims that Bokomo is contravening the Industrial Property Act of 2012 through "conduct outside of the parameters of fair and honest competition".

The allegations are made in a case in which Namib Mills - claiming that Bokomo Namibia is trying to pass off its product as emanating from Namib Mills - is asking the High Court to restrain Bokomo from selling its vetkoek flour in the packaging it is currently using.

Namib Mills is also asking the court to restrain Bokomo from trading in contravention of the Industrial Property Act by making use of the look of Namib Mills' vetkoek flour packaging to give it an unfair advantage over its competitor.

Bokomo Namibia has given notice that it would oppose Namib Mills' application. The case was due to be heard by deputy judge president Hosea Angula yesterday, but did not proceed after the two companies' legal teams agreed to have the hearing postponed to 13 February.

Van Niekerk says in his affidavit that white bread flour sold by Bokomo Namibia was used by most vetkoek vendors to make their products, giving Bokomo a dominant share of the vetkoek market in Namibia, until Namib Mills developed a new vetkoek flour mix that came onto the market in January this year.

That was after research done for Namib Mills showed consumers prefer their vetkoek to be golden yellow outside and light and fluffy inside once fried, and not to absorb a lot of oil, Van Niekerk says.

The flour mix that Namib Mills came up with to help consumers make the vetkoek of their dreams has been a hit, with sales skyrocketing from a total of 128 tonnes in February to 880 tonnes in August, according to figures quoted by Van Niekerk.

He also says Namib Mills decided to have its vetkoek flour packaged in bags with a "mustardy-yellow identity". Says Van Niekerk: "To an extent, this also matches a perfectly cooked vetkoek; at least, in a world of imagined perfect imagery."

In August, though, Bokomo Namibia started selling its vetkoek flour - in packaging with a similar colour as the Bakpro product, Van Niekerk claims.

Namib Mills "has no gripe about competition, but the manner in which [Bokomo] has chosen to compete is not lawful", and is not within the bounds of honest competition, he says.

Although Bokomo's brand name features prominently on the packaging of its vetkoek flour, the use of a colour that consumers have already begun to associate with the Bakpro product is bound to confuse people into believing that the Bokomo flour is connected to the Bakpro product, according to Van Niekerk.

He further claims that this risk of confusion has already been confirmed by a Windhoek vetkoek vendor known as meme Lahya, who was seen by a Namib Mills merchandiser where she picked a bag of Bokomo vetkoek flour from a shelf at a wholesaler when she thought she was getting her usual bag of trusted Bakpro vetkoek flour.

Bokomo Namibia has not yet responded to the allegations made in Van Niekerk's affidavit.

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