In a landmark victory for IP law in Zimbabwe and across the region at large, BMatanga Attorneys successfully represented Vivon in a trademark infringement case. In an increasingly competitive operating environment, brand devices and character attributes are integral commercial properties that need to be protected and upheld. Below is an article from a The Standard, a leading newspaper in Zimbabwe:

Court Blocks Bottled Water Copycat

The High Court has barred a Chinese water bottling company from using logos identical to its competitor, Vivon Investment, in a landmark ruling.

BY CHARLES LAITON

Vivon Investments are the producers of Vivon bottled water, while Win-King Investments produce Victoria Plus bottled water, whose logo is identical to that of its rival. This prompted Vivon to approach the court, claiming infringement of its trademarks.

In dismissing the defence raised by Win-King, High Court judge Justice Lavender Makoni said the logo used by the company on its Victoria Plus water was likely to cause confusion to the buying public.

The judge ordered Win-King to immediately recall “all goods bearing the packaging identical to or resembling Vivon’s registered marks” and that “the Sheriff of Zimbabwe and/or his lawful deputies be authorised to search for and remove to a storage facility all the goods bearing the packaging identical to or resembling Vivon’s registered marks from Win-King’s premises or from wherever such goods are located”.

Win-King was also ordered to pay costs of the application on a legal practitioner and client scale, including all Sheriff’s fees for removal and storage. The legal wrangle started sometime in December last year when Victoria Plus was ordered to stop the practice, but the firm would not budge, prompting Vivon, through its lawyer Brenda Matanga of B Matanga IP Attorneys, to approach the High Court.

Matanga, who instructed Advocate Fadzai Mahere, presented that Vivon had rights in respect of its logo since it was registered as a trademark and the certificates of registration were presented for the court to see.

The lawyers presented that Win-King did not have the right to use the logo, which was similar to that of Vivon since that would be an infringement of Vivon’s registered trademarks, according to Section 8 of the Trademarks Act.

The lawyers argued that Win-King was free-riding on Vivon’s goodwill and reputation, which the company had established since it started the trade in 2013 and had expended financial resources and effort in marketing its water.

They claimed Win-King was committing an act of passing-off in trading in the water that carried a logo which closely resembled that of its own. Vivon also argued its logo had certain artistic works which constituted a copyright and by the copying of the logo without its permission Victoria Plus, was infringing on the Copyright Act.

Win-King, through its lawyer Advocate Lewis Uriri, who was instructed by Nyangani and Partners, sought to defend itself, arguing that the trademarks in dispute belonged to some Chinese company. The company said the mark was registered in China and France and as such, Vivon’s logo should be expunged from the register.

However, Win-King’s argument was not accepted by the court. Win-King failed to satisfy the court that their logo was not likely to cause confusion to the public, but simply argued that the splashes of water on their logo were disjointed as opposed to that of Vivon and that the names of the water was different.