Kwal rival barred from using vodka bottle in industrial design war

The Industrial Property Tribunal has temporarily barred Mount Kenya Breweries Ltd from using bottles Kenya Wines Agencies Ltd says are its design to sell its vodka brand known as Sparkler.

The five-member tribunal ruled that Kwal had proved that the bottles used by MKBL were similar to Kwal’s Kibao Vodka, infringing on its property rights.

“In our assessment, the registration of that design prima facie, gives the applicant (Kwal) exclusive right to the shape and configuration of the bottle in which it markets its Kibao vodka,” the tribunal ruled.

Kwal moved to the tribunal accusing its rival of using the Kibao vodka bottle design to package and sell its Sparkler Vodka, without any licence or consent.

Kwal argued that it stood to suffer economic loss if the MKBL was not stopped from marketing its vodka product in bottles that mimic its registered industrial design.

In reply, MKBL said the Sparkler vodka bottle was distinct from Kibao Vodka, and that the design was sourced from Milly Glass Works Ltd and Pragati glass Gulf LLC.

The company further said it had been buying used bottles from bottle collectors as part of its corporate social responsibility. Usually, the bottles are collected from bars, dustbins and garbage sites. The company, however, said it does not use bottles with unique names, slogans or registered trademarks of competitors.

The tribunal, however, said statutory right requires protection regardless of the magnitude of resultant loss.

“We are also alive to the fact that exclusive industrial designs are granted for a limited period of time,” the tribunal ruled.