Jury is out on Mikoani vs. Bakhresa over trademark

There will be a big ‘fight’ in the Commercial High Court this week as lawyers of two rival Tanzanian manufacturing firms, Mikoani Limited and Bakhresa group take on each other in a renewed scuffle over a brand-name, Azania; the fight has been ongoing for two years now. At the centre of the fight are two Tanzanian family-owned businesses whose long standing rivalry keeps escalating as their enterprises expand; the ‘warfare’ between them has since crossed borders following the expansion of their operations into Rwanda. Charles Dickens said in his ‘Old Curiosity Shop’ that ‘if there were no bad people, there would be no good lawyers.’ In context, if there were no ugly suits, there would be no great attorneys. The Mikoani vs. Bakhresa fight is an ugly one, alright and while it brings out the worst in business competition, it has also managed to milk the best from the commercial lawyers involved in the case, arguably, among Rwanda’s finest in this particular branch of legal practice. Mikoani, represented by Geoffrey Mwine of GMCC Law Chambers and Safari Kizito of Bona Fide Law Chambers, legal pretence aside, both genuinely believe that their client has a bona-fide case against Bakhresa whom they accuse of coloured business malice against Mikoani. Bakhresa, represented by Moise Nkundabarashi of Trust Law Chambers has proved to be a fine match for the Mikoani lawyers with whom they have engaged in back and forth legal gymnastics resulting into five judgements over the last two years; two victories to Bakhresa, one victory to Mikoani and two curiously ‘neutral verdicts’ not uncommon in commercial law. But, lex malla, lex nulla; a bad law is no law. Azania, the trademark at the centre of the contest is owned by Mikoani in Tanzania. But in 2013, Bakhresa registered Azania among its own trademarks in Rwanda after exploiting a loophole in East Africa’s commercial laws that suggest; a trademark ownership isn’t cross-border. Shortly after, Mikoani entered the Rwanda market only to find that they couldn’t use their flag name Azania because their rival, Bakhresa, had claimed and registered it as their own; court would be the only avenue and that was the beginning of the fight. Now, Azania and Azam, you will notice, are almost identical. Mikoani and Bakhresa produce a host of products, respectively, under the two symbols, including Azam and Azania flour. To a consumer, picking between Azam and Azania maize flour could be down to choice of product pricing, taste, packaging, quality or simply brand equity; these are matters that form the core of competition between the two businesses back in Tanzania. So when Bakhresa expanded to Rwanda, it sought to block that irritating headache and cleverly insulated its Azam products from Azania’s. This meant that even if Mikoani entered the Rwandan market at a later stage, it legally couldn’t use the Azania insignia on its product-line. Indeed, the case has since stalled the construction of the Azania grain-milling plant in the Special Economic Zone and launch of its production line. It has been three years now. They say, when the law doesn’t work, work the law. Mikoani couldn’t use the law to reclaim use of its Azania trademark in Rwanda. So its lawyers, while keeping Bakhresa busy in court, were also buying time, waiting in a dark corner, for the right time to ‘pounce and work the law.’ The Rwanda intellectual property law has in its diction that if a trademark remains commercially unused for three years, its presumptive user would lose right to its ownership or use and that anyone else would be free to claim it. The three years elapsed in April 2016. As if on cue, Mikoani lawyers petitioned the Office of the Registrar General at the Rwanda Development Board to bring to its attention the redundancy of the contested trademark and cause its liberation from the disputed ownership by Bakhresa. “It isn›t against the Law to be an idiot,” said Cassandra Clare, author of the novel, Clockwork Angel. The Office of the Registrar General heeded to the petition by Mikoani lawyers and liberated the trademark setting a major precedent under the country’s intellectual property law. It then meant that the trademark Azania is not owned by anyone in Rwanda...at the moment. To claim its ownership, Mikoani lawyers rushed back to court where they lodged an application. What does Bakhresa say? Apparently, Bakhresa lawyers are going to oppose the Mikoani application to own the Azania trademark and sources in their camp indicate that they have strong evidence in form of invoices that they have been using the trademark in commercial transactions in Rwanda. They are going to table that evidence and put on the spot, the Office of Registrar General, why it liberated the trademark yet it was clearly in active commercial use. Clearly, the jury is still out on this; on Wednesday, the rivals will clash in the Commercial courtroom ring and a Judge will decide the winner of round six of this seemingly unending rumble by two Tanzanian rival firms in a Rwanda courtroom. editorial@newtimes.co.rw

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Jury is out on Mikoani vs. Bakhresa over trademark