Basembi banned for infringing Balimi trademark
DAR ES SALAAM: THE High Court’s Commercial Division, has prohibited the East African Spirits Tanzania Limited from production, distribution and selling in Tanzania market its new beer, Basembi Extra Lager, for allegedly infringing the Tanzania Breweries Limited (TBL) registered trademark of Balimi Extra Lager.
Judge Mwajuma Kadilu reached the decision after granting a suit filed by TBL against East African Spirits, the defendant, over the alleged infringement.
“I declare that the defendant has infringed the plaintiff’s trademark, Balimi Extra Lager,” the judge declared in a judgement delivered recently.
“The defendant is permanently restrained from producing, selling, offering for sale, promoting or advertising Basembi Extra Lager or any other product similar to Balimi Extra Lager in the Tanzanian market, which may continue to deceive or confuse consumers,” the judge added.
Considering the duration of the infringement, from June to December 2024 and the strength of the evidence presented by the plaintiff, the court ordered the defendant to pay TBL 200m/- in specific damages and an additional 50m/- in general damages for infringing the plaintiff’s trademark.
The plaintiff had complained that the defendant’s mark, ‘Basembi’, which is used in selling beer in the same market where Balimi beer is brewed, distributed and sold, has confused the consumers. It was shown in the case that the colours used on Balimi and Basembi packaging bottles confused consumers in the Lake Zone due to the appearance of the bottles.
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The judge said in the judgment that in intellectual property rights, tats is an infringement based on the principle of trade dress, which is commonly referred to as, get-up trademark infringement.
During the hearing, one of the defendant’s witnesses testified that there was no confusion because the Basembi bottle is smaller than Balimi’s. While both bottles feature the alcohol content on the front label, framed by gold strips, there is a distinct difference in the taglines.
Basembi carries the tagline ‘Madini Fahari Yetu,’ meaning ‘Our Pride Minerals” while Balimi’s tagline reads ‘Fahari ya Mavuno Yetu,’ which translates to ‘Pride of Our Harvest.’
The witness further noted that ‘Basembi’ refers to ‘mineral diggers’ in the Sukuma language, whereas ‘Balimi’ means ‘farmers.’ The judge pointed out that customers rely on the visual images of a mark without comparing it with other trademarks and the consumer’s attention varies according to the category of goods in question.
The judge said that the nature of the goods in the case at hand is alcohol; hence, the consumers are not expected to be very careful about labels, catchphrases or strips on the bottles.
“Both Balimi and Basembi belong to class 32 in the classification of trademarks in Tanzania and they are usually placed on the same shelves in the shops, making the confusion more likely,” Judge Kadilu said.
She also pointed out that the evidence has also shown that the consumers in Shinyanga, where the two beer products are sold, have been considering Basembi as a small Balimi.
“In that regard, I am convinced that there was indirect confusion of consumers by the defendant’s trademark, Basembi Extra Lager. The defendant is liable for infringement of the plaintiff’s trademark for having used Balimi’s trade dress without authorisation,” the judge said.
She said that the law in Tanzania does not make a distinction between direct and indirect confusion as long as there is an infringement of a mark envisaged under Section 32 of the Trade and Service Marks Act, [Cap. 326 R.E. 2023]. TBL registered “Balimi Extra Lager” in 1999.
In July 2024, the company discovered beer products on the market that closely resembled its own, which were being manufactured and distributed by the defendant in the same market
