“What's in a name?” Juliet asks in Act 2 Scene 2 of Shakespeare’s Romeo and Juliet. Following a trademark infringement lawsuit by The Coachella Valley Music and Arts Festival (one of the most renowned music and art festivals in the world) the renowned Ghanaian Afrochella music festival is about to find out.
Afrochella is allegedly capitalising on the goodwill of well-known COACHELLA festival trademark by actively advertising music events in the United States and Ghana using the confusingly similar mark 'AFROCHELLA'.
Businesses use trademarks to distinguish their products and services from those provided by rival companies. Many years ago the law established the unfair competition concept, which was created to safeguard both consumers and companies.
The doctrine, defined as the practice of dishonest or fraudulent rivalry in the business arena establishes a minimal standard of "fairness" to be applied in marketplace competition.
However, it goes against public policy because it excessively burdens competition; in other words, it is illegal to compete “too much” or “too hard.”
Where does trademark infringement come into this scenario, then? Infringement is sublimated from a formula that acknowledges a trademark to be conveying three benefits to a brand: identity; quality and equity.
Therefore, unfair competition enters the picture to protect any brand from financial harm brought on by a competitor through an unethical or dishonest business conduct, such as copying or counterfeiting.
And what exactly qualifies as an "unfair" act varies with the context of the business, the action being examined, and the particulars of each case. Thus, to make such a determination, the owner of the trademark must prove that the trademark in question is valid, registered, and protected by law.
The trademark owner must additionally demonstrate that the claimed infringer's use of the mark results in confusion regarding the source of the related goods or services.
In related yet unrelated and regarding festivals, Tanzania has Sauti za Busara, while Uganda has Nyege Nyege. It's time the Nairobi governor gave us Nairobi a festival to showcase and celebrate the spirit of the city.
The writer is an Advocate of the High Court of Kenya.
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