Businesswoman wins trademark dispute against ONA Brands

Harare businesswoman Leticia Kuda Mupawose has won a trademark dispute against ONA Brands (Pvt) Ltd after the High Court Commercial Division ruled in her favour, affirming her exclusive rights to the trademark "FESO."

Justice Sylvia Chirawu-Mugomba delivered the ruling, finding that ONA Brands had infringed upon Ms Mupawose's registered trademark, resolving a contentious legal battle over intellectual property rights, prior use, and consumer confusion in the hair care industry.

Ms Mupawose, who holds the "FESO" trademark in Zimbabwe, Botswana, Mozambique, and Malawi under the African Regional Intellectual Property Organisation (ARIPO), had accused ONA Brands of unlawfully using the name for its hair growth products since April 2023. She argued that ONA Brands' branding, which included the name "FESO" and a flower design similar to her registered mark, misled consumers and violated her intellectual property rights.

ONA Brands countered the claim, stating that its packaging prominently featured the words "ONA Brands," distinguishing it from Ms Mupawose's products. The company also argued that "FESO" was a descriptive term for an ingredient commonly known in traditional medicine and, therefore, not subject to exclusive ownership.

In her ruling, Justice Chirawu-Mugomba examined the legal impact of ARIPO registration, the potential for consumer confusion, and the validity of ONA Brands' claims. She clarified that ARIPO registration grants the same legal protection as local registration under Zimbabwe's Trade Marks Act.

Regarding ONA Brands' defence of prior use, the court dismissed the claim, stating, "There is no information on when it started to use the name FESO on its products or where or how. The claim is a bold assertion, and in my view, it is not enough to sustain the defence of prior use."

The court also acknowledged that "FESO" was not an invented term but found that, in the context of branding, the name had acquired distinctiveness through Ms Mupawose's products. Applying legal principles from the Plascon-Evans case, Justice Chirawu-Mugomba concluded that a typical consumer was likely to be misled.

"In my view, a notional customer in the marketplace is likely to be confused when looking at the two marks with the inclusion of the word FESO," she ruled.

Evidence of actual confusion among consumers further strengthened Ms Mupawose's case, leading to a verdict in her favour.

The ruling sets a significant precedent for trademark enforcement in Zimbabwe, reaffirming the legal protections granted under ARIPO and safeguarding businesses against brand infringement.