Judgement in February 2020
Yanna Smith - The High Court matter in which Namib Mills has sued Bokomo Namibia for “dishonest practises in industrial or commercial matters” was postponed to 19 February next year for judgment.
The matter is regarded as a landmark case as it is the first time that section, 194 (1) of the Industrial Property Act of 2012 will be tested. The section, ‘acts of unfair competition’ reads that “any act of competition contrary to honest practices in industrial or commercial matters is unlawful”.
Namib Mills asked the court to interdict Bokomo from selling its wheat flour vetkoek mix, and all its rebranded products, in their current packaging. At the heart of the issue is the packaging of the Bokomo vetkoek flour. Namib Mills says that it was Bokomo’s “intention to take advantage of the reputation” of their packaging. Namib Mills launched its vetkoek mix in January 2018 and Bokomo, its product, in August of the same year. Both feature the mustard-yellow design.
Bokomo relied on “passing off” in its arguments. It told the court that “imitation is the lifeblood of competition” and quoted a legal matter stating: “For these reasons and with these limitations the bare imitation of another’s product, without more, is permissible. And it is true regardless of the fact that the courts have little sympathy of a wilful imitator.”
Bokomo asked for evidence of confusion, deception and dishonesty. It also disputed that colour was the predominant choice in product choice saying that 82% of its research respondents mentioned the logo, and the words vetkoek and cake. In terms of colour, Bokomo says yellow had the least amount of mentions behind white, blue and red. “When looking for Bokomo products, respondents look for the distinctive red colour of the Bokomo logo and then the category. Namib Mills knows it has no evidence of confusion, deceit or dishonesty.”