Millers in vetkoek fight

Namib Mills wants the High Court to stop Bokomo selling a vetkoek flour mix in packaging that closely resembles its equivalent Bakpro product.

07 December 2018 | Justice

Namib Mills is suing Bokomo Namibia for alleged unfair competition and wants the High Court to interdict Bokomo from selling its 'vetkoek flour mix' in its current packaging.

In his founding affidavit before the High Court, Pieter van Niekerk, commercial manager at Namib Mills, sets out the company's argument why the packaging constitutes uncompetitive behaviour by Bokomo Namibia.

He claims that Bokomo intentionally chose the design of its packaging “in order to benefit from the equity of the Namib Mills brand” in Namibia.

Bokomo's majority shareholder is South African giant Pioneer Foods, a listed company that recorded just over R10 billion in revenue in 2017.

Van Niekerk claims that Bokomo has “appropriated a significant element of Namib Mills' get-up [packaging]”. He told the court that Namib Mills is the largest grain-processing company in Namibia, selling maize meal, wheat flour and pasta, and packaged rice and sugar.

“It sells these under its trademark Bakpro and, in particular, the distinctive get-up of these products.” The brand has worked since 1982 for its equity. Packaging plays a very big part in this, he explained.

“This get-up is well known and is relied upon by purchasers in the buying process. It has three constituent characteristics: The top two-thirds is white with the brand Bakpro appearing in the top third, a picture of cake or bread in the middle of the pack, and the bottom third shows a slash or band in a particular colour.

“Apart from the colour brown, for the brown bread wheat flour product, there is no relation to the product in the colours of the slashes adorning the packs.”

Namib Mills, Van Niekerk said, researched the particular mix of bread and cake flour to produce the ideal dough for vetkoek, ensuring minimal absorption of oil during the frying process, and introduced this mix as an “innovative product to the Namibian market”.

The packaging, because it forms part of the Bakpro product range, was packaged in a similar get-up but the colour slash is mustard-yellow.

Van Niekerk said Bokomo's cake and bread flour sales were detrimentally affected after the introduction of the vetkoek mix, which did exceptionally well in the market. At its introduction in January 2018, 42 tonnes were sold and by August, sales had climbed to 880 tonnes.

“What is also relevant is that the new vetkoek flour product cannibalised sales directly from Bokomo's white bread flour. Namib Mills' staff reported that Bokomo was driven to selling stock very close to its expiry date at discounted prices at wholesalers. This is relevant because it is no doubt what prompted Bokomo into introducing vetkoek flour in its unlawful packaging.”

Van Niekerk spoke at length of brand visual equity and a brand's visual assets.

“There are phenomena recognised by marketing experts as being a basis upon which consumers make purchasing decisions, because it is such features which influence their thought processes at the time of purchase. No doubt, this is well appreciated by Bokomo which is why it has adopted the essential elements of Namib Mills' visual assets for its competing product.”

He explained the marketing campaigns that Namib Mills invested in to promote its vetkoek flour.

“It is relevant and material that the marketing strategy has been, and continues to be, to focus on the distinctive mustard-yellow.”

More than N$1.7 million was spent on marketing the brand, he said. In summary, Van Niekerk told the High Court, “The various forms of advertising of the product have compounded the equity that exists in the pack design, but in particular the mustard-yellow colour, as signifying Namib Mills' vetkoek flour”.

He charged that the packaging of Bokomo's other products differs significantly from that of Namib Mills' Bakpro range.

“Comparing them with Namib Mills' product, one will notice how radical the changes are and how the new pack appropriates several features of Namib Mills' pack design architecture.

“I challenge Bokomo to take the court into its confidence and make a full and candid disclosure of all aspects relating to the design of the pack for its vetkoek flour product.

“Namib Mills has reasonable grounds to believe that the design was intentional, in order capitalise on and benefit from Namib Mills' reputation.”

Van Niekerk drew the court's attention to what is referred to as 'category language'. He explained that both Namib Mills and Bokomo, along with others in the market, package brown bread flour with a brown colour scheme while the colour scheme for white bread flour is blue.

“Yet, there is no category known as vetkoek flour.”

According to Van Niekerk, there was no reason for Bokomo's packaging to feature the mustard-yellow colour chosen by Namib Mills.

“Bokomo's doing the same, coupled with its significantly amended pack architecture, can only be explained by an intention to appropriate benefit from the existing reputation vesting the get-up of Namib Mills' vetkoek flour product, or to cause confusion in the market, or both.”

Bokomo, in its response, chose to deal with technicalities.

Replying to Van Niekerk, Hubertus Hamm, CEO of Bokomo Namibia, dealt extensively with the lack of urgency of the application. He accused Namib Mills of causing the delays and added that “any perceived urgency was therefore created by Namib Mills itself”. He told the court that essentially, Bokomo Namibia is not a party to the proceedings as it was incorrectly cited as “Bokomo Foods” in the court papers.

He quoted another High Court matter in which the respondent was incorrectly cited. That application was dismissed with costs due to the incorrect naming of the respondent.

Hamm added that it took Namib Mills two months to complete its founding affidavit, “yet it is of the view that anyone opposing the relief sought should be deprived of proper opportunity to oppose the relief”.

He also denied that “irreparable harm” would be caused, describing it as a “bold allegation with no substantiation whatsoever”.

Before Justice Hosea Angula yesterday, Bokomo did not defend and the parties agreed to bring amendments with the application proceeding before the court on 13 February next year.

Tobias Louw from Theunissen, Louw and Partners appeared for Namib Mills while Daneale Beukes from Engling, Stritter and Partners appeared for Bokomo Namibia.


Similar News


Mass action against Swakop Uranium

1 day - 12 December 2018 | Justice

Swakop Uranium is being dragged to court by 706 of its workers in two different matters, with claims totalling more than N$53 million.Yesterday, at a...

Nghiwete fights back

2 days ago - 11 December 2018 | Justice

Suspended CEO of the Namibia Students Financial Assistance Fund (NSFAF), Hilya Nghiwete, has filed an application with the High Court in which she claims that...

Oontamanana pokati kehangano lyaNamib Mills naBokomo

2 days ago - 11 December 2018 | Justice

Mondukumende dhawo dhompangu, menindjela gwomalanditho moNamib Mills, Pieter van Niekerk, okwa popi kutya kashi li mondjila pamulandu gwomathigathano mongeshefa Bokomo Namibia a longithe oombaapila dhokupakela...

Millers in vetkoek fight

6 days ago - 07 December 2018 | Justice

Namib Mills is suing Bokomo Namibia for alleged unfair competition and wants the High Court to interdict Bokomo from selling its 'vetkoek flour mix' in...

Six-month 'payment holiday' mooted

6 days ago - 07 December 2018 | Justice

The government has urged commercial banks to introduce an assistance scheme that would give people who lose their jobs a six-month “payment holiday” in which...

Back to court in fight to evict illegal settlers

6 days ago - 07 December 2018 | Justice

The legal battle to evict seven Gam farmers accused of illegally occupying parts of the Nyae Nyae communal conservancy for nearly a decade is set...

No docket in court for child-rape case

6 days ago - 07 December 2018 | Justice

Alleged serial rapist Gewen Gawa-nab (24) appeared before the Katutura Magistrate's Court on Wednesday but the docket was not available and Magistrate Loide Amwaandi-Ndangi had...

Lecturer denied bail after shootings

1 week ago - 06 December 2018 | Justice

A 44-year-old Unam lecturer, who allegedly shot and injured two men on Monday night in Rundu's Kehemu location, was denied bail by the Rundu Magistrate's...

Sale in execution turns sour

1 week ago - 06 December 2018 | Justice

In an urgent application in the High Court yesterday, Old Mutual Holdings was accused of acting unreasonably and without justification after the company withdrew instructions...

Personally liable

1 week ago - 05 December 2018 | Justice

Deputy Chief Justice Petrus Damaseb has warned magistrates and judges that they could be held personally liable if they are found guilty of negligence and...

Latest News

Cops heavily in debt

10 hours ago | Police

The police chief, Lieutenant-General Sebastian Ndeitunga, yesterday gave President Hage Geingob a frank overview of the tragic state of affairs in the force.According to him...

Iilonga hailed as steadfast, courageous

10 hours ago | People

Tributes are pouring in for struggle veteran Petrus Iilonga, who died on Tuesday evening at the age of 71.Iilonga was a former trade unionist and...

Another tough half-year for Nictus

10 hours ago | Business

Jo-Maré Duddy – The recession continued eroding the profit of Nictus Holdings in the first six months of its current financial year, but its impact...

Our big-spending defence ministry

10 hours ago | Columns

Recent calls by parliamentarians in the National Council to increase the defence budget make for interesting reading. Onesi constituency councillor Titus Kanyele recently suggested more...

At your fingertips

10 hours ago | Technology

Yolanda Nel - After a break-in at her home three years ago, an entrepreneur decided to develop an app that provides emergency contact numbers at...

B1 crash claims three

10 hours ago | Accidents

Three men died on the Okahandja-Otjiwarongo road yesterday morning when their vehicles collided after one of the cars had crashed into a cow standing in...

Namvet to play politics

10 hours ago | Politics

The Namibia War Veterans Trust (Namvet) says it is considering entering the political fray by participating in the 2019 national elections after all attempts to...

Communities in dire need of...

10 hours ago | Disasters

Several areas have been identified as “hot spots” where communities are suffering from chronic water shortages and emergency water assistance is required. Agriculture...

Africa Briefs

10 hours ago | Economics

Tanzania to sign deal for power plantTanzania will sign a deal this week for the construction of a US$3 billion hydroelectric power plant, president John...

Load More