EABL plant in Ruaraka. FILE PHOTO | NMG
East African Breweries Ltd (EABL) wants the High Court to
dismiss an application by a local rival who has sought protection from
the court over alleged harassment from the police over use of beer
bottles.
FRM (EA) Packers moved to court in January
accusing police of colluding with EABL to illegally and maliciously
confiscate its beer products on claims that they were counterfeit.
The
company, through lawyer Gichuki King’ara, wants the court to grant them
orders stopping the police from entering its premises, confiscating its
products, or arresting its agents and distributors in the guise of
fighting fakes.
FRM said the raids are based on
malicious allegations by KBL that the company is selling its products
using its (KBL) bottles. The company argued that the bottles are
universal and cannot be patented.
But in a reply filed
in court, EABL and KBL, through the legal director, Ms Nadida Rowlands,
dismissed claims by the rival that beer bottles are the same worldwide
in terms of size, shape, and general outlook.
“There is
nothing like a universal Euro bottle. All manufacturers choose their
bottle design and customise their bottles to meet their unique business
requirements,” Ms Rowlands said.
Ms Rowlands stated in a
sworn statement that it is her understanding that FRM has the right to
package its beer products in a brown bottle known as the Euro bottle.
She,
however, said the rival cannot claim ownership of usage rights to
bottles purchased by another manufacturer and that it has failed to
demonstrate that it has ever purchased any.
Through
lawyer Kamau Karori, the giant brewer said KBL purchases bottles from a
leading glass maker in Kenya and it currently packages its various beers
in over 10 varieties of bottles. One of the bottles used by KBL for
over 40 years, he said, is one known as the Euro Amber 500ml.
EABL
has also accused the rival of misleading its customers by packaging its
product known as Santa King Ice, a spirit, in beer bottles. Mr Karori
said this amounts to engaging in false trade description of goods.
“It
is at once clear that there is nothing like a universal bottle. All
manufacturers choose their bottle design and customise their bottle to
meet their unique business requirements,” EABL said in reply.
EABL
argued that there are several types of bottles and that they vary in
size, shape and colour as well as the specifications and requirements of
the manufacturer.
"FRM (EA) Packers Limited has failed
to establish a threshold level that it has a valid interest in Euro
bottles, since it is not a manufacturer or importer of beer. It has no
legal right that this court can be called upon to protect in relation to
use of the Euro bottles that are used to package beer only," added KBL.
KBL
also wants the court to dismiss the case, saying it cannot hear a
matter relating to criminal proceedings and people who are not before
it.
“The alleged criminal cases really revolve around
the issue of quality, content, key identifiers, manufacturing, labelling
and packaging of alcohol. All matters are regulated by the Standards
Act," Ms Rowlands said.
Intellectual property
FRM
(EA) Packers, however, wants the court to issue orders stopping the
Inspector-General of police and the Director of Public Prosecutions
(DPP) from summoning, arresting or charging its employees over the sale
of Santa King Ice and other products.
The company
claimed EABL occupies a dominant position in the beer market and is
abusing dominance in violation of section 24(2) of the competition Act.
The
firm wants a declaration that the purported registration of initials
EABL as a trade mark amounts to the use of an intellectual property
right in a manner that goes beyond the limits of fair, reasonable and
non-discriminatory use.
It further alleges that its
products are duly licensed and the actions of the police and KBL are
meant to stifle competition and drive them out of business.
The
company maintained that Santa King Ice is sold in universal brown
bottles, which are conventionally used worldwide by alcoholic beverage
manufacturers.
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