Footwear maker Bata has suffered a blow after the Court of Appeal rejected a bid to stop a rival from manufacturing shoes similar to its Toughees brand, which is popular among school children.
A bench of three judges said Bata Brands SA and Bata Shoe (K) Ltd will not suffer irreparable injury, which cannot be compensated if Umoja Rubber products is not stopped from manufacturing and distributing its product known as Shupavu.
Bata had argued that the rival was confusing its market by selling shoes with similar shape and design.
The company told the court that Umoja's move was motivated by bad faith and dishonesty and was intended to pass on its new Shupavu shoes as Bata's distinctive and synonymous Toughees.
Bata also wanted the court to make an order for Umoja to deliver to it all Shupavu shoes for destruction.
But in their ruling the bench said; "We note further that the applicant has not demonstrated the extent of the damage it had suffered since the respondent started producing the shoe brand alongside its own and further the damage they might suffer if the orders are not granted," Justices William Ouko, Asike Makhandia and Sankale ole Kantai ruled.
The judges said it is not a mere mention of a loss or a mere apprehension of a loss but rather the actual aspect that is real that would render Bata's appeal, useless, if the order is not issued.
Bata moved to the appellate court after High Court Judge James Makau declined to stop Umoja from manufacturing its brand, which it argued was similar to its own in design, shape and general appearance, yet it has promoted its products in Kenya for more than 15 years.
Justice Makau rejected the plea in 2018 saying Bata was guilty of indolence and for waiting for over four years to challenge the rival's product
In the appeal, Bata said it only became aware of the rival's product in January 2017.
In response, Umoja argued that it started producing Shupavu shoes way back in 2014 when there was no similar footwear in the world with similar trade name and started selling them in 2015.