[2023] KEHC 23539 (KLR)

Ocean Foods Limited v Osotspa Company Limited & 2 others (Civil Case 318 of 2017) [2023] KEHC 23539 (KLR) (Commercial and Tax) (13 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23539 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Case 318 of 2017

JWW Mong'are, J

October 13, 2023

Between

Ocean Foods Limited

Plaintiff

and

Osotspa Company Limited

1st Defendant

Osotspa Europe Limited

2nd Defendant

Extropica Foods Limited

3rd Defendant

Judgment

1. On 20th December 2017 the Plaintiff through an amended plaint sought for entry of judgment against the Defendants for the following orders:-i.A declaration that the Plaintiff’s acknowledgement of debt and payment plan was agreed between the Plaintiff and the 1st and 2nd Defendants under clause D of the Addendum of January 2016 was made in mutual mistake by the parties and is in breach of the terms of Clause 10 of the letters of understanding of November 2015. ii.A declaration that the Plaintiff is not indebted to the 1st and 2nd Defendants in the sum of EUR 1,488,985. 18 or at all.iii.Special damages in the sum of $1,500,000 for damaged goods.iv.Costs of this suit.

2. Subsequently and upon service of the amended plaint, the 1st and 2nd Defendants filed their amended defence on 16th February 2018. The 1st and 2nd Defendants also filed a counterclaim against the Plaintiff seeking the following prayers:-i.Euros 1,592,000ii.A permanent injunction restraining the Plaintiff whether by itself, its directors, servants or agents or otherwise howsoever from packaging, distributing, offering for wholesale or retail trade, releasing to the public or otherwise howsoever making available “Ocean Energy Drinks” including but not limited to Ocean Regular, Ocean Sugar Free, Ocean Lite, Ocean Apple & Melon and Ocean Still or any other drink whatsoever in cans or other packaging that is the same as, similar to, or likely to cause confusion with the 1st Defendant’s packaging of its “Shark” energy drinks.iii.A permanent injunction restraining the Plaintiff from packaging, distributing, offering for wholesale or retail trade, releasing to the public, or otherwise howsoever making available its “Ocean Energy Drinks” including but not limited to Ocean Regular, Ocean Sugar Free, Ocean Lite, Ocean Apple and Melon and Ocean Still or any other drink whatsoever in cans or other packaging that bear any word, device or mark including but not limited to the word, device or mark “ocean” that is designed, printed, engraved or otherwise used in a manner that makes it similar or likely to cause confusion with the 1st Defendant’s “Shark” trade mark No 50628 registered in Class 32. iv.A permanent injunction compelling the Plaintiff to withdraw from the market, including from its distributors and from wholesale or retail outlets all of its Ocean Energy Drinks including but not limited to Ocean Regular, Ocean Sugar Free, Ocean Lite, Ocean Apple & Melon and Ocean Still or any other drink whatsoever that is packaged in cans or other packaging that are the same as, similar to, or likely to cause confusion with the 1st Defendant’s packaging of its “Shark” energy drinks.v.Damages for infringement of the 1st and 2nd Defendants “Shark” trade mark and for passing off.vi.Damages for loss of revenue.vii.Interest at court rates and costs.

3. A perusal of the court record reflects that despite being given an opportunity to file a defence to the Counterclaim by the 1st and 2nd Defendants, the Plaintiff did not do so. On 27th April 2023, the Plaintiff did not attend court for the hearing of the suit. From the return of service filed by the Plaintiff appears to have moved from the location it was operating from and could therefore not be served physically with any court process. The Plaintiff has been made aware of all the dates this matter has been coming up in court for hearing through registered post and through the last known email address. The Court is therefore satisfied that the Plaintiff has been accorded ample opportunity to come and defend the counterclaim by the 1st and 2nd defendant and has failed and or ignored to do so.

4. The Court therefore, dismisses the entire suit filed by the Plaintiff against the Defendants and enters Judgment on the counterclaim for the 1st and 2nd defendants against the Plaintiff as prayed. The Court notes under prayer 5 & 6 of the counterclaim the 1st and 2nd Defendant seeks damages for loss of revenue and infringement of trademark. The Court therefore directs that the said portion of the counterclaim shall be subjected to a formal proof.

Conclusion and Final Disposition 5. Judgment is entered in favour of the Defendants against the Plaintiff as prayed in the counterclaim in the following terms;i.The Plaintiffs suit as filed in the plaint is hereby struck out and dismissed for want of prosecution with costs to the Defendant,ii.The court enters judgment in the counterclaim for the 1st and 2nd Defendants against the Plaintiff in the following terms:-a.Euros 1,592,000. b.A Permanent Injunction restraining the Plaintiff whether by itself, its directors, servants or agents or otherwise howsoever from packaging, distributing, offering for wholesale or retail trade, releasing to the public or otherwise howsoever making available “Ocean Energy Drinks” including but not limited to Ocean Regular, Ocean Sugar Free, Ocean Lite, Ocean Apple & Melon and Ocean Still or any other drink whatsoever in cans or other packaging that is the same as, similar to, or likely to cause confusion with the 1st Defendant’s packaging of its “Shark” energy drinks.c.A Permanent Injunction restraining the Plaintiff from packaging, distributing, offering for wholesale or retail trade, releasing to the public, or otherwise howsoever making available its “Ocean Energy Drinks” including but not limited to Ocean Regular, Ocean Sugar Free, Ocean Lite, Ocean Apple and Melon and Ocean Still or any other drink whatsoever in cans or other packaging that bear any word, device or mark including but not limited to the word, device or mark “ocean” that is designed, printed, engraved or otherwise used in a manner that makes it similar or likely to cause confusion with the 1st Defendant’s “Shark” trade mark No 50628 registered in Class 32. d.A Permanent Injunction compelling the Plaintiff to withdraw from the market, including from its distributors and from wholesale or retail outlets all of its Ocean Energy Drinks including but not limited to Ocean Regular, Ocean Sugar Free, Ocean Lite, Ocean Apple & Melon and Ocean Still or any other drink whatsoever that is packaged in cans or other packaging that are the same as, similar to, or likely to cause confusion with the 1st Defendant’s packaging of its “Shark” energy drinks.e.Damages for infringement of the 1st and 2nd Defendants “Shark” trade mark and for passing off (Subject to formal proof).f.Damages for loss of Revenue (subject to formal proof).g.Interest on (a) above.h.Costs of the suit.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 13TH DAY OF OCTOBER 2023………………………………..J. W. W. MONG’AREJUDGEIn the presence of:-No appearance for the Plaintiff.Mr. Ochieng for the 1st and 2nd Defendant.Amos - Court Assistant