Gambia: High Court Orders Businesspersons to Stop Using 'Ingelec' Products

The Banjul High Court presided over by Justice Aminata Saho-Ceesay has made an order that restrains all dealers from selling or offering to sale products bearing the trademark 'Ingelec'.

The plaintiff, Ingelec SA claim that the use of the Ingelec trademark on their electrical products by the defendants is an infringement of the plaintiff's registered trademark and is calculated to lead and has in fact led to deception and to the belief that the defendants' electrical products are products of the plaintiff. The plaintiff said the defendants do not have their consent to use its trademark or brand or the trade name of their goods.

The plaintiff in their claim stated that the defendants' products bearing 'Ingelec' trademark are not the plaintiff's meaning they are trading with fake products bearing the trademark.

The plaintiff claim that the defendants have already damaged their business and will cause irreparable damage to the plaintiff's business by the continued sales of their fake 'Ingelec' products including damage to the plaintiff's business reputation unless the Defendants are restrained by injunction from continuing the aforesaid wrongful acts.

The 8 listed defendants are; Burama Touray trading as Touray Kunda Enterprise Limited, Youssef Bakhos trading as Y.M.B. Enterprise, Salieu Njie trading as F and F Enterprise, Alhagie O.M. Ceesay trading as Darbo and Sons Enterprise, Modou Mbaye Enterprises, C.N.C., Tai Merchantile (Gambia), and Abdul Khadry Diallo trading as ASK Trading.

The plaintiff's claims are; for the court to issue an injunction pursuant to section 13, 31, 34A, 35 and 43 of the Industrial Property Act to restrain the defendants jointly and severally whether by themselves, their servants or agents or any of them otherwise howsoever from infringing their registered trademark number 1/413/340.

Also, the plaintiff wants the court to issue an injunction to restrain the defendants jointly and severally whether by themselves, their servants or agents or any of them otherwise howsoever from passing off or causing, enabling or assisting others to pass off the electrical products of the defendants including circuit breakers, fuse boxes and similar electrical products as the electrical products of the plaintiff by the use or in connection therewith in the course of trade, the plaintiff's trademark 'Ingelec' or any trading or brand style containing the work or device 'ingelec' or any colourable imitation thereof.

The plaintiff want the court to make an order for the delivery up to the Sherriff of the High Court and destruction of all Defendants' good bearing the trademark 'ingelec' and general damages of 51,000,000 (fifty one million dalasis).

This order was made on 10th July 2019 by the High Court through a motion Ex-Parte by Lawyer A.A. Bensouda on behalf of the plaintiff, Ingelec SA. The High Court Judge said: "..And upon reading the 26 - paragraph affidavit sworn to by one Mehdi Maaz (dated 4th July 2019), the General Manager of Batimat Limited together with the exhibits attached thereto marked "AB1" - "AB5"; I am satisfied that there are reasonable grounds for making the order.

She ordered that an interim injunction be and is hereby granted to restrain the Defendants (whether acting by themselves, their servants or agents or any of them or otherwise howsoever) from selling or offering for sale products bearing the Trade Mark 'Ingelec' pending the hearing and determination of a motion on notice. Also, she ordered that the Sherriff of the High Court do enter forthwith the business premises and other premises under the control of the Defendants, their servants, agents or recipients of supply for commercial purposes, for the purpose of attaching and removing into Sheriff's custody for preservation of any products bearing the name 'Ingelec' in breach of the foregoing injunction pending the hearing and determination of a motion on notice in the said terms. Finally, she ordered that the ex-parte motion be converted to a motion on notice.

The plaintiff is a company whose registered office is located in Morocco and claimed that it has the certificate of the trademark registration issued by the WIPO. According to the statement of claim, by virtue of section 13 of the Industrial Property Act 2015, they have acquired the protection for the use of its mark 'Ingelec' in The Gambia from October 2017 pursuant to its international certificate of registration. They said by a licence dated agreement dated 29th March 2019, they have appointed Batimat Limited as the exclusive distributor of 'Ingelec' products in The Gambia. They claim that electrical products bearing 'ingelec' are exclusively attributed to them. The defendants are the proprietors of a number of retail shops at which electrical and building equipment among other things is sold.

The court decision does impact on these proprietors. Speaking to some of the affected businesspersons after receiving the court order, they expressed frustration about it, adding that the order will affect them drastically on the economic gains. Some told Foroyaa that they purchased their products from the plaintiff. They said they have been trading this product so many years ago.

"I took the product from the plaintiff (company) on credit and I have my shop where I resell it. I am owing the plaintiff over 50,000 dalasis and now my goods are been seized from me at their own instance," one of them told this reporter.

According to the businessmen, they have been trading this product for decades ago and they were not aware of any copyright with regards to any company or business entity.

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