Namibia: Judgement Reserved On Flour Packaging Fight

Two fierce rivals in Namibia's consumer foods market, Namib Mills and Bokomo Namibia, will have to wait until early next year to hear which one of them has won a High Court case about the packaging used for their flour products.

Having heard oral arguments in the case over the course of three days in the Windhoek High Court last week, deputy judge president Hosea Angula reserved his judgement, and postponed the matter to 19 February next year for the delivery of his decision.

The case started off in November last year with claims by Namib Mills that Bokomo Namibia was imitating its packaging for the vetkoek flour mix that Namib Mills introduced onto the Namibian market under its Bakpro brand in January 2018.

Namib Mills initially asked the court to restrain Bokomo from selling its vetkoek flour in the packaging in which it launched a product competing with Namib Mills' vetkoek flour in August last year.

The company also asked 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.

A month after launching its legal action against Bokomo, Namib Mills expanded the scope of its attack on its rival by amending the orders it is applying for. The company did that by giving notice that it was asking the court to not only issue an interdict to stop Bokomo from selling vetkoek flour in packaging resembling that of the Bakpro product, but to also restrain Bokomo from selling its cake and bread flour in packing that is similarly coloured and structured as the packaging Namib Mills is using for its cake and bread flour.

In written arguments filed at the court on behalf of Namib Mills, Ramon Maasdorp and senior counsel Owen Salmon argue that the packaging Bokomo chose for its vetkoek flour - using the same mustard yellow colour that features on Bakpro's vetkoek flour packaging, and also with different parts of the packaging similarly placed as on the Namib Mills products - imitates essential elements of Namib Mills' product.

The use of such similar packaging not only with the vetkoek flour, but also for its cake and bread flour, is likely to confuse consumers and is unlawful because it results in a misrepresentation of Bokomo's product, they argue. Even if consumers were only to be momentarily confused by the Bokomo packaging, to think that the company's products were connected to Namib Mills' flour products in similarly coloured packaging, that would be sufficient to warrant the granting of an interdict against Bokomo, Salmon and Maasdorp also argue.

In their written arguments on behalf of Bokomo, Charmaine van der Westhuizen and senior counsel Raymond Heathcote dispute that Namib Mills has been able to show that Bokomo has been trying to pass off its flour products as those of Namib Mills.

They argue that Namib Mills has no evidence of consumers' confusion, or of deceit or dishonesty on Bokomo's part.

While admitting that Bokomo chose the same colour for its vetkoek packaging as that used on the Bakpro product, Heathcote and Van der Westhuizen also argue that this was an acceptable practice in the market place. On Namib Mills' complaint that Bokomo appropriated the same mustard yellow colour used on the packaging of the Bakpro vetkoek flour, they also comment: "Appropriated? A colour? With respect, Namib Mills does not own the yellow portion of the rainbow, or its different shades."

In their arguments, Salmon and Maasdorp also claimed that "a litany of petty technical objections" had been raised on Bokomo's behalf since the case was filed, and that these had been nothing more than tactics to delay or avoid justice. A special costs order should be given against Bokomo because of this, they argue.

Heathcote and Van der Westhuizen strike back at Namib Mills in their arguments, accusing the company of having approached the court with a dishonest version, since the initial packaging of Bakpro's vetkoek flour stated that it was simply white bread flour - and not a special mix of bread and cake flour as claimed by the company. Because of that alleged deception, Namib Mills cannot claim the protection of the court for its product, they argue.

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