Eureka E.C. Oxenham & CY Ltd v Oxenham Alexandre E. (SC/COM/WRT/01244/2017)
FACTS:
Eureka E.C. Oxenham (the Applicant company) is a company incorporated under the laws of Mauritius, whose activities include the manufacture, importation and distribution of wines and spirits in Mauritius.
It was a business which started in 1932 by late Edward Clark Oxenham and has, over the years, earned a goodwill and reputation through considerable investments, both human and material for the superior quality of its products and its expertise in the field.
The Applicant is furthermore the registered proprietor of the trademark ‘OXENHAM’ which has been registered under The Patents, Industrial Designs and Trademarks Act 2002, which mark was registered to cover alcoholic beverages (except beers) and advertising, business management, business administration and office functions.
As a result, the mark ‘OXENHAM’ is the exclusive property of the Applicant.
ISSUE:
In or about August 2017, it has come to the knowledge of the Applicant that Alexandre E. Oxenham (the Respondent) intends to launch a winery in the name of Takamaka Boutique Winery which will, similarly to the Applicant, be engaged in the manufacture of wines in Mauritius and will thus operate in the same market as the Applicant.
The Respondent has also created/ is managing a Facebook page for Takamaka Boutique Winery with a view to advertise and promote the said winery and the products that will be offered by it.
The advertisement being carried out by the Respondent is being done in such a way as to cause confusion in the minds of the public that Takamaka Boutique Winery is associated with the Applicant Company by making direct references to the Applicant company, its brand and history to promote, advertise and/or sell its own products, thereby misappropriating all the hard work and know-how that the Applicant has built over the years.
REMEDY SOUGHT:
The Applicant prayed from the Supreme Court (Commercial Division) of Mauritius for:
A. An interim order in the nature of an injunction to be issued, restraining and prohibiting the Respondent from:
(i) Making any reference to the Applicant company, including references to the Applicant’s founder, its history, its former and current premises, its former and current employees, in order to promote and advertise TAKAMAKA BOUTIQUE WINERY and the products thereof;
(ii) Using any photographs of the Applicant company, including photographs of the Applicant’s founder, its history, its former and current premises, its former and current employees, or any other material on which the Applicant Company owns proprietary rights, in order to promote and advertise TAKAMAKA BOUTIQUE WINERY and the products thereof;
(iii) Using the mark “OXENHAM” and/or any other appellation similar to the Applicant’s mark “EUREKA E.C. OXENHAM” in a manner that is likely to cause a confusion that the Respondent and its business activities are directly and/or indirectly associated with the Applicant company;
- And this pending the determination of the main case to be entered before the Commercial Division of the Supreme Court and at the Applicant’s own risks and perils.
B. A Summons to issue calling upon the abovenamed Respondent to be and appear before the Honourable Judge sitting in Chambers to show cause, if any, why the Interim Order should not be made Interlocutory;
- And for any other order as the Honourable Judge may deem fit in the circumstances.
OUTCOME:
An interim order in the nature of an injunction in the above terms was granted by Honourable G. Angoh on the 22nd September 2017, this pending the determination of the present application after hearing the version of the Respondent.
Etude Guy Rivalland appeared representing the interests of the Applicant in the present application.
