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This is an appeal decision concerning Cairns Foods Limited and Netrade Marketing, two companies active in the production and marketing of food products, in particular fruit jams.
Cairns Foods has used its SUN mark and appliance label extensively for jam products for over 50 years and has a reputation in labelling. On October 10, 1995, Cairns Foods registered its SUN trade mark and appliance label covering jam products. However, Cairn Foods was asked to relinquish exclusive rights to the fruit-based devices, limiting its rights to the composite label mark accordingly.
In 2016 it came to the attention of Cairns Foods that Netrade Marketing had, in 2011, registered a trademark for its ROYAL SUN
word mark only covered jam products with a disclaimer for ROYAL and used the mark with fruit devices (see above). Cairns Foods sued for infringement and misrepresentation on the grounds that Netrade’s use of its ROYAL SUN mark was likely to, and was causing, confusion in the marketplace. Netrade relied on its trademark as a defense (interestingly, no trademark cancellation petitions were filed in the newspapers).
The lower court dismissed Cairn Foods’ infringement action based on the differences between the marks and the fact that the fruit-based devices had been refused. The case based on deception was also dismissed.
Cairns Foods appealed the decision and won because the lower court had wrongly dissected the two label marks concluding that they were different. The trial court had also erred in its assessment of Cairn Foods’ trademark disclaimer and finding that it had no right to the sun.
Given the low level of litigation in Zimbabwe on trademark issues, this well-drafted decision is welcome as it correctly applies the criteria. The litigation is expected to continue, however, as Netrade still has a registration for ROYAL SUN covering the jam.
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