Deputy Judge President Hosea Angula this week dismissed with costs an application by Namib Mills to interdict Bokomo Namibia from using its current branding of its vetkoek flour as it is similar to that of Namib Mills.

Namib Mills brought an urgent application last year which was rejected and then heard in the normal case manner during last year.

According to papers filed by Namib Mills, the packaging design of the vetkoek flour of Bokomo will cause confusion and deception amongst the ardent vetkoek flour consumers as it is similar to that of Namib Mills. 

They contended that the use of a mustard yellow colour to depict the end product was theirs first and that Bokomo’s use of the same colour was meant to appropriate the benefits they derived from it.
Not so, said Bokomo. According to them there is no law that prohibits them from using any colour in their packaging. 

Market research indicated that to use the finished product on the packaging – which in this case happens to be a golden brown vetkoek, mustard yellow in colour, was the most proficient and they had to go with it.
Namib Mills also accused Bokomo of breaching the Industrial Property Act by ‘dishonestly and unlawfully’ passing off its vetkoek brand as being connected to that of Namib Mills, which the judge rejected.

According to Judge Angula, the burden is on the applicant (Namib Mills) to prove on a balance of probabilities that the respondent’s (Bokomo’s) act of competition is contrary to honest practice. The test to be applied, he said, is whether reasonable members of the trade, upon knowing all the relevant facts, say that that the respondent knew that the conduct complained of is honest.

According to the judge, it is not in dispute that the introduction of the vetkoek flour brand of Namib Mills caused Bokomo to lose market share of the white bread flour which had been used to make vetkoek until then. He went on to say that in his view, the decision of Bokomo to introduce its own vetkoek flour with its design was fully and satisfactorily explained.

“As far as the introduction of vetkoek flour is concerned, the respondent is upfront, and in my view, honest, that it would not have introduced its vetkoek flour had the applicant not introduced its vetkoek flour as the market leader.” Judge Angula further said that he could find no evidence that Bokomo acted contrary to the Industrial Property Act.

With regard to the issue of whether Bokomo’s use of the get-up on its flour product carries the likelihood that a substantial number of purchasers of its products is likely to be deceived or confused into believing that the respondent’s flour products are the products of the applicant or are in some way or another connected to or associated with the applicant’s products, the judge said that it is highly unlikely that a “vetkoek lady” would not be able to distinguish between the products. “It would be like a butcher who cannot make a difference between mutton and lamb,” the judge noted.

The judge further remarked that no evidence was led about a single customer that was confused by the two get-ups. This, he said, is significant given that the fact that the applicant’s products are sold nation-wide in a country with a population of 2.5 million people.

According to the judge, an average customer, even in the rural areas, would be brand-conscious and would further be familiar with both his or her preferred brand and its price and thus brand confusion would be absent.

The judge ordered Namib Mills to pay the costs of Bokomo on the scale of one instructing and two instructed counsel.

Namib Mills was represented by Owen Salmon SC assisted by Advocate Ramon Maasdorp instructed by Theunissen, Louw and Partners and Bokomo by Advocate Raymond Heathcote assisted by Advocate CE van der Westhuizen, instructed by Engling, Stritter & Partners.  – rrouth@nepc.com.na