LIVERA TRADING (PVT) LTD & ORS v
TORNBRIDGE ASSETS LTD & ORS

CONSTITUTIONAL COURT, HARARE

[Urgent Chamber Application for Leave to Appeal and Interim Relief CCZ 13-16]

October 3 and 17, 2016

ZIYAMBI JCC

Constitutional law – Constitutional Court – Direct appeal to – Leave to appeal – Leave not to be granted where other remedies exist unless there are good reasons.

Held, that unless there are good reasons, leave to appeal directly to the Constitutional Court will not be granted if there are other remedies available to a litigant.

Legislation considered:

Constitution of Zimbabwe, 2013, ss 56 (1), 69, 69 (1), (2), (3), (4), 85 (1)

T Mpofu with N Chamisa, for the applicants

ABC Chinake, for the respondents

ZIYAMBI JCC:

On 2 September 2016, the High Court (Mtshiya J) granted a provisional order in favour of the respondents in the following terms:

“IT IS ORDERED THAT:

1. The first, second and third respondents and any person acting through them be and are hereby interdicted from infringing on the applicant’s Registered Trademark No 1710/2000 in Class 34 by using the name RG or any packaging likely to deceive or cause confusion on or in relation to any of the goods for which the marks are registered.

2. The first, second and third respondents and any person acting through them be and are hereby interdicted from passing off its goods and the same RG by the use of the applicant’s Registered Trademark No 1710/2000 in Class 34.

3. The first, second and third respondents and any person acting through them be and are hereby interdicted from infringing on the applicants’ copyrighted products by using similar or the same artistic works as that on the applicants packaging for its Remington Gold cigarettes.

4. The first, second and third respondents and any person acting through them be and are hereby ordered to deliver to the applicants, for destruction all products, packaging labels, posters, wrapping, advertising matter or other materials in the possession of the respondents and any person acting through them bearing the mark RG or so nearly resembling the trademark of the applicants.

5. The first, second and third respondents and any person acting through them, be and are hereby asked to account to the applicants for all gross sales generated by the ‘RG’ brand within seven days of the date of this order.

6. The first, second and third respondents jointly and severally the one paying the other to be absolved be and is (sic) hereby ordered to pay costs of suit on legal practitioner and client scale.

INTERIM RELIEF GRANTED:

That pending finalisation of this matter, an interim order is hereby granted in the following terms:

1. The first, second and third respondents and any person acting through them be and are hereby interdicted, with immediate effect, from carrying out any launch of the RG brand in Zimbabwe on any date until the matter is finalised.

2. The first, second and third respondents and any person acting through them be and are hereby interdicted, with immediate effect, from trading in or otherwise marketing, distributing or selling any cigarettes bearing the packaging likely to deceive or cause confusion on, or in relation to any of the goods for which the applicants Registered Trademark No 1710/2000 in Class 34 are registered without the leave of this Honourable Court.

3. The first, second and third respondents and any person acting through them be and are hereby directed to immediately recall all goods bearing the packaging RG, identical thereto or resembling the applicants’ Registered Trademark No 1710/2000 in Class 34 from any of the outlets or its sales distribution agents to whom it may have sold or delivered such products.

4. The Sheriff of Zimbabwe and/or his lawful Deputies be and are hereby authorised to search for and remove to a storage facility all goods bearing the RG mark or identical to or resembling the applicants’ Registered Trademark No 1710/2000 in Class 34 from the first respondent’s premises at No 40 Van Praagh Avenue, Milton Park, Harare respectively or from wherever such goods are located.

5. The first, second and third respondents jointly and severally the one paying the others to be absolves (sic) including the Sheriff’s fees for removal and storage.”

It will be seen that the interim relief sought has the same effect as would the final order if granted. The interim order has immediate effect.

The applicants appealed against the order on grounds, inter alia, that the copyright registered does not extend to the mark “RG” (the mark currently being used on the first applicant’s brand of cigarettes) and protects only the mark REMINGTON GOLD. It was alleged that no evidence was placed before the court as to the respondents’ reputation or goodwill in the mark “RG”, which evidence was essential for establishing the wrong of “passing off”. The respondents, however, argue that “RG” is used on their brand of cigarettes as a “nickname” in conjunction with the mark REMINGTON GOLD.

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