Innscor Africa Limited has failed in its bid to interdict its competitor, Slice Distributors (Pvt) Ltd, also trading as Chicken Slice, for alleged trademark infringement in the High Court.
Chicken Inn filed an application at the High Court in 2019 seeking an interdict against Chicken Slice for using its trademark, “Luv” and its colours.
Chicken Inn argued that Chicken Slice had used “Luv” in its burger and grill logo.
The company also argued it has always used “Luv Dat Chicken” since 1987 before Chicken Slice started using “I Luv it” too on its burgers boxes.
Chicken Inn further submitted that the resemblance of the trademark and colours confuses consumers of their products.
However, Chicken Slice rejected the accusations arguing that Chicken Inn doesn’t own exclusive rights to the tagline “luv”.
In her ruling, Justice Sylvia Chirawu-Mugomba said besides the word “luv”, the marks used are not similar and are used on the burger rather than the Chicken Slice logo. She said:
In my view, a national customer who encounters the products of the plaintiff and the first defendant is not likely to be confused by the difference between them.
Justice Chirawu-Mugomba noted that the evidence brought before the court by Chicken Inn was not sufficient as the similarities revealed through chats of clients do not represent the views of all customers. She said:
Apart from the contention that the Chicken Inn was established in 1987, reference to a university student thesis and a few social media chats, the plaintiff has not put anything else before the court that proves goodwill and reputation.
This cannot be by any stretch of the imagination taken as proving goodwill and reputation. As already indicated, this is a matter of fact.
The proof, being a pre-requisite for passing off, Chicken Inn has failed to prove that Chicken Slice passed off any of its products as those of the plaintiff.
Accordingly, the claim for passing off by the plaintiff against Chicken Slice fails. It is trite that costs are at the discretion of the court. I can perceive no reason why Chicken Inn should not be awarded costs.
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