2 millers lock horns over maize flour brand name

Flour meal is a multi-billion shilling market with maize being the country's staple food.

The case has been filed at the High Court in Milimani by Homegrown Ltd, which has also lost a bid to stop Capwell from using the brand name on its products.

Pending hearing and determination of the case, Homegrown sought protection of its commercial interests by urging court to restrain Capwell and its agents from "distributing, selling, offering for sale, advertising, marketing, stocking, or otherwise dealing with maize meal whatsoever under the brand name “Pamoja Maize meal” contained in packing with a similar get up, logo, colour scheme, trademark and pictorial representation" to the Homegrown's.

But Justice Wilfrida Okwany said the company failed to establish it has a strong case for granting of the injunction order sought.

The judge noted that both companies have registrations of their respective trademarks of the brand.

Homegrown contended that it registered its trademark Pamoja Maize Meal on October 28, 2015 and is set to expire on October 28, 2025.

In a rejoinder, Capwell said it first registered its Pamoja Maize Meal brand as its trademark with the Registrar of Trademarks on May 24, 2005 for a period of ten years that expired on May 24, 2015 after which it sought a renewal for a further 10 years set to expire in the year 2025.

The Capwell's case was that since it was the first to obtain registration of the trademark in the year 2005 it had the exclusive right and use of the trademark.

"In effect both parties have demonstrated that they registered the trademark that is the subject of this suit. This being the case, the court cannot hold that the trademark of one party is superior to the other before hearing the merits of the suit," said Justice Okwany.

PRICE WAR

"If anything, and without prejudice to the outcome of the main suit, one can say that the trademark that was registered earlier should take precedence over the subsequent one. I, therefore, find that Homegrown has not established that it has a prima facie case against Capwell so as to warrant the granting of the injunctive orders sought," she added.

The two companies were incorporated under the Companies Act in different times to carry on the business of milling and wholesale of maize meal.

Through its official George Kamau Wanyoike, Homegrown said the infringement of trademark is causing it irreparable damage.

He said Homegrown's product was being sold at Sh1,350 per bale while Capwell's was being sold at Sh1,250. According to Mr Wanyoike, the difference in price was eroding the Homegrown's market due to underpricing.