Tanzanian firm Mikoani Limited plans to challenge last week’s Commercial Court ruling on a disputed trademark, Azania, that went in favour of its rival, Bakhresa group. 

Speaking to The New Times after the ruling, a Mikoani representative – who requested not to be named in order to talk freely – also said they might be forced to abandon the Rwandan market since they cannot use their trademark anymore.

Mikoani had wanted the Commercial Division of the High Court to annul Bakhresa’s claim to the trademark and restore the Tanzanian firm as the rightful owners to pave way for their Rwf12 billion investment plan in the country.

Geoffrey Mwine and Safari Kizito, who represented Mikoani, told the court that Bakhresa Group, in 2013, went to the Office of the Registrar General at Rwanda Development Board (RDB) and obtained patent rights of Azania trademark.

They argued that Bakhresa’s intention was to guard its Azam flour products against competition that would be posed by Mikoani’s Azania flour products.

Azam and Azania are bitter rivals in Tanzania, where the two firms, Bakhresa and Mikoani, are originally registered.

Mikoani lawyers argue that by obtaining patents over Azania, Bakhresa had effectively blocked the former from extending their home rivalry to the Rwandan market.

Last week, the court quashed those arguments on grounds that not enough evidence was provided to prove that Bakhresa’s actions were done in bad faith.

The court also concurred with Bakhresa’s counsel Moise Nkundabarashi, who said at the time of registration, the Azania trademark had no owner in Rwanda, instead blaming Mikoani for not moving fast to protect its own brand.

Investor speak out

Speaking to The New Times outside the Nyarugenge court, last week, a Mikoani official who attended the session said their lawyers would be instructed to appeal in a higher court.

"I disagree with what the judge said that there was nothing to prove that Azania was already known in Rwanda. We have been exporting to this country since 2001 and we have invoices to prove it; we are definitely going to appeal,” the official said.

Asked what will be done if they lost the appeal to reclaim the trademark, the official said they would just have to "close and quit.”

"It would be terrible. We would just close and go back, there’s no other way we can operate because our brand is more expensive than what we have so far invested here.”

Mikoani is currently constructing its plant in the Special Economic Zone (SEZ) under the name, Azania Grain Milling Factory-Rwanda.

"We have so far covered 90 per cent of the construction works and so far spent over $8 million, but we can’t continue as long as the situation stands,” the official said.

If completed, the plant will have a daily production capacity of at least 750 tonnes of wheat flour.

Many observers say it would have been better for the two rivals to settle the dispute out of court through arbitration but the Mikoani official said the decision for legal redress was taken after attempts at mediation failed last year.

"On discovering that they had taken over our name, we immediately wrote a letter of protest to RDB and mediation was arranged, however, those efforts failed because our counterparts didn’t show interest to resolve the matter,” the source said.

Although RDB wasn’t listed as one of the respondents in the suit, the Mikoani party believes the agency is responsible for their woes.

"As a serious institution, they should surely have done proper due diligence to ascertain whether the name they were about to give away was not owned, a simple Google search would have informed them that Azania was already active in Rwanda,” said the angry investor.

In our previous article published by this newspaper, RDB’s Office of the Registrar General vindicated itself, saying their action was within the laws.

"It is mandatory to register a trademark to claim a right; -the protection is territorial, there is no agreement or convention between EAC member states on trademark protection. All member states use the Paris convention.

Bakhresa filed the Azam and related trademarks on 7/11/2012 and received protection on April 2013 before Mikoani,” it said in a statement.

editorial@newtimes.co.rw