Namib Mills loses vetkoek fight

ONE of Namibia’s major food producers, Namib Mills, has lost a legal battle against its main competitor, Bokomo Namibia, over the packaging that Bokomo is using for its vetkoek flour and other flour products.

Namib Mills failed to prove that a substantial number of consumers are likely to be deceived or confused into believing that Bokomo Namibia’s flour products are the products of Namib Mills or in some way connected to Namib Mills’ products, High Court deputy judge president Hosea Angula concluded in a judgement delivered in the Windhoek High Court on Monday.

Judge Angula also found that there were significant and sufficient differences in the two companies’ flour packaging and thus there is no reasonable likelihood of confusion between the two companies’ competing products. While there are also some similarities in the companies’ packaging, the differences are overwhelming, the judge concluded.

He further found that Bokomo Namibia did not breach the Intellectual Property Act of 2012 by engaging in dishonest competition with Namib Mills, which was one of the allegations that Namib Mills made against Bokomo.

Judge Angula dismissed the application that Namib Mills lodged against Bokomo Namibia in November 2018 and ordered that Namib Mills should pay Bokomo’s legal costs in the matter.

Namib Mills was initially asking the court to order Bokomo to stop selling its vetkoek flour product in packaging that it claimed is substantially similar to the packaging Namib Mills uses for its Bakpro vetkoek flour product.

While its case was at first focused on Bokomo’s vetkoek flour product, Namib Mills later widened the scope of its legal attack on its competitor by also asking the court to restrain Bokomo from selling its cake and bread flour in packaging that is similarly coloured and structured as the packaging Namib Mills is using for its cake and bread flour.

Namib Mills launched its vetkoek flour product in January 2018, and packed the flour in bags in which mustard yellow was the dominant colour. The company informed the court that the product was a great success and that Bokomo Namibia followed suit in August 2018 by putting its own vetkoek flour on the market in packaging with a similar colour as Namib Mills’ Bakpro product.

In his judgement, deputy judge president Angula said no one can claim to own any particular colour. “Colours are there to be freely used by everybody,” he stated, adding that he found no substance in Namib Mills’ claim that a mustard yellow colour signifies its vetkoek flour product. “It amounts to an absurdity,” the judge remarked.

He noted that there were significant differences between the Bokomo and Bakpro logos on the two companies’ flour products, with the Bokomo name in red capital letters and the Bakpro logo in blue and in both capital and lower case letters. The presentation of finished products like vetkoek, bread and cake on the two companies’ flour packaging is also different, he observed.

Namib Mills claimed that it was aware of a vetkoek seller in Windhoek who only used the Bakpro vetkoek flour and mistakenly took the Bokomo vetkoek flour from a shop shelf, thinking she was taking the Namib Mills product. However, judge Angula said he had grave doubt about the existence of a ‘vetkoek lady’ who cannot differentiate between Bokomo, Bakpro or Snowflake flour.

“It would be like a butcher who cannot make a difference between mutton and lamb,” he commented.

Namib Mills did not provide evidence of a single consumer that had been confused by Bokomo’s flour packaging, the judge said.

Namib Mills was represented by South African senior counsel Owen Salmon, assisted by Ramon Maasdorp. Senior counsel Raymond Heathcote, assisted by Charmaine van der Westhuizen, represented Bokomo Namibia.

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