An American company that markets African ethnic foods in the United Kingdom under the ‘Ola-Ola’ label has a ‘strong case’ that a trade rival engaged in selling similar goods under the same mark is guilty of passing off, a judge has ruled.
Fayus Inc. has since 2004 built up a trade in pounded yam, carotino oil and plantain chips under the ‘Ola-Ola’ brand and argues that it has established substantial goodwill in its products, achieving sales in the UK of more than £400,000 in 2011.
The company launched a passing off claim against Flying Trade Group Plc. which it claims began selling ethnic food products, including pounded yam, in the UK under the ‘Ola-Ola’ mark in about 2011. Pointing to alleged similarities in the appearance of labelling of the rival ‘Ola-Ola’ brands, Fayus argues that there have been instances of consumer confusion between the two company’s products.
Flying Trade argues that ‘OIa-Ola’ is a generic African word, meaning ‘all good’, and denies that it has intentionally copied the design of Fayus’ brand. The company says that it first considered using the ‘Ola-Ola’ mark in 2003/04 and denies that it had any prior knowledge of Fayus or its trade in the UK.
In a preliminary decision, Judge Colin Birss QC has ruled that Fayus has a ‘strong case’ that Flying Trade’s use of the ‘Ola-Ola’ mark amounts to passing off. He said that, even if the word ‘Ola-Ola’ has a meaning in an African language, it has no meaning in English and there is no reason why goodwill and reputation should not subsist in it.
Flying Trade had in 2010 registered the word ‘Ola Ola’ as a trade mark but the judge also ruled that Feyus has a strong case that that trade mark is invalid.