By Thabani Mnyama
When you think of fast food in Zimbabwe, two names quickly spring to mind – Chicken Inn and Chicken Slice.
Over the years, these two brands have solidified their hold in society, such that they have become synonymous with all things fast food. They are well-known direct competitors, whose competition undoubtedly has benefited customers. They have an indelible mark in the food industry in Zimbabwe, which is why it is no surprise that at the heart of these two main brands lies a long trademark battle. This is the case of Innscor Africa Limited (Chicken Inn’s former parent company) v. Slice Distributors (Pvt) Ltd and Registrar of Deeds, a battle over an alleged trademark infringement.
First, what is a trademark anyway?
A trademark is a distinguishable feature unique to a business as it provides its services or goods, which it becomes known by. The law governing the issuance and governance of trademarks in Zimbabwe is the Trade Marks Act [Chapter 26:06] (The Act). A broader description on “Trademark” can be found under Section 2 of The Act in its interpretation provision.
The law on trademarks, at face value, is straightforward. You register your trademark, and once it’s registered, no one is allowed to trade in the same business you’re trading in under a “mark” similar to or that can be easily confused for yours. This reasoning formed the basis that led to Innscor trading as Chicken Inn, as the “Plaintiff”, bringing legal action to Slice Distributors (Pvt) Ltd, trading as Chicken Slice, for what Chicken Inn alleged to be an infringement of their trademark.
You may wonder why any company may not want competition by bringing legal action against another company, but consider this; Chicken Inn filed for its trademark in 1987 and then Chicken Slice came into the picture many years after filing for its trademark in 2002. This means that in all these years, between 1987 and 2002, Chicken Inn was building their brand, which became trusted and known by the customers, and then for Chicken Slice to come into the picture resembling Chicken Inn, they were allegedly riding on the work that had been done by Chicken Inn. It could be argued that Chicken Slice was benefiting from all the hard work by getting a free market share. This is what the trademark laws aim to prevent.
Luv dat lawsuit
In its papers, Chicken Inn alleged that Chicken Slice used the word ‘luv’ in their tagline, stealing from the Chicken Inn tagline ‘luv dat chicken.’ Furthermore, they alleged that Chicken Slice had also incorporated in the brand the exact colours that Chicken Inn used, and that this caused confusion amongst the customers and qualified for infringement of their trademark by means of passing off. ‘Passing off’ is a concept where goods or services are peddled as if they are associated with a certain already established brand.
The lawyers for the plaintiff relied on some comments passed on social media by some people and a thesis from a student at the University of Zimbabwe to form the basis of their evidence. This, sadly, was not a strong argument given the standard of proof needed in court.
In her judgement, Justice Sylvia Chirawu-Mugomba said: “Apart from the contention that the Chicken Inn was established in 1987, reference to a university student thesis and a few social media chats, the plaintiff has not put anything else before the court that proves goodwill and reputation.”
She ruled that, beyond the word ‘luv’, the marks used were not similar, adding: “In my view a national customer who encounters the products of the plaintiff and the first defendant is not likely to be confused by the difference between them,” said the judge.
Upon reading the full judgment, it is easy to deduce that Chicken Inn was clutching at straws in their attempt to sue Chicken Slice. We can only assume the motive behind this; fear of competition or something else we are yet to figure out.
In my opinion, it was ill-advised for Innscor Africa Limited to go after Slice Distributors (Pvt) Ltd with what clearly was not a watertight case. This has resulted in a waste of their time and resources, also loss of money as the case awarded Chicken Slice by having Chicken Inn foot the costs for the legal battle between the two. There are smaller retail outlets trading within Harare which Innscor stood a better chance at going after. However, this was not the case.
This case may have set precedence, where some may think they can easily get away with copying and passing off their services and products by riding on some big corporates’ already established monopolies.
Thabani Mnyama is a lawyer and Founder/Senior Managing Partner for Esquire Consultancy Firm. He flies planes in his spare time.