The legal battle over ownership and control of the Jigsimur health drink brand in Nigeria is set to move to the Federal High Court following a ruling by the Administrative Panel Division of the Patents and Designs Registry in favour of Jigsimur SA (Pty) Limited.
The dispute pits the South African company against Jigsimur SA Original Pty Limited, another South African entity, and its Nigerian representative, JigsimurPlus Limited, over competing claims to the Jigsimur trademark, industrial design, packaging, and distribution rights in Nigeria.
The Administrative Panel, in its ruling delivered on September 2, affirmed the right of Jigsimur SA (Pty) Limited to distribute the health drink in Nigeria and restrained Jigsimur Plus from relying on the disputed patent rights.
The panel, however, described its decision as a first-level alternative dispute resolution (ADR) process intended to resolve the dispute without prolonged litigation.
It also stated that any party dissatisfied with the decision could challenge it before the Federal High Court.
Jigsimur Plus, which insists that it introduced and developed the Jigsimurproduct in the Nigerian market, has taken steps to challenge the panel’s decision.
At the centre of the dispute is the question of who first acquired enforceable rights to the Jigsimur brand in Nigeria, whether the rights claimed by the parties in South Africa can affect ownership in Nigeria, and the legal significance of competing trademark applications, registrations, assignments, and distribution arrangements.
In its written address before the panel, counsel to Jigsimur Plus, Chief Anthony George-Ikoli, SAN, argued that his client’s rights in Nigeria predated those claimed by the opposing parties.
George-Ikoli maintained that Jigsimur Plus applied to register the Jigsimurtrademark in Nigeria in 2018. He stated that the application date was significant because it preceded subsequent registrations and assignments relied upon by the opposing side.
The senior lawyer further argued that trademark rights were territorial and that the history of the Jigsimur brand in South Africa could not, without more, confer proprietary rights over the mark in Nigeria.
According to him, Jigsimur Plus dealt throughout the relevant period with Jigsimur SA Original Pty Limited, which supplied the products and regulatory documentation and possessed relevant SAHPRA recognition and documentation in South Africa.
He said the South African company also authorised Nigerian distribution and granted powers relating to the registration and protection of the trademark and industrial design in Nigeria.
George-Ikoli submitted that CAN AFFORD Products and Projects (Pty) Limited obtained Nigerian registrations for the Jigsimur name, logo and label on May 14, 2021, under Trade Mark Nos. 43580 and 43581.
He argued that the registrations came three years after Jigsimur Plus had applied for registration of the mark in Nigeria.
Jigsimur Plus also claimed that it had established substantial goodwill in Nigeria through years of commercial activity involving the product.
According to its counsel, the company continuously imported and distributed Jigsimur products across Nigeria and invested in marketing, dealer networks, and building customer recognition for the brand.
George-Ikoli challenged the opposing side’s reliance on a 2016 Power of Attorney and Distribution Agreement, arguing that an authority to protect intellectual property does not, by itself, constitute proof of a pre-existing proprietary right in Nigeria.
He also argued that there was no evidence that the opposing parties had applied to register the Jigsimur trademark in Nigeria before Jigsimur Plus’s 2018 application.
The SAN further contended that a 2024 judgement from South Africa could not determine ownership of intellectual property rights in Nigeria, insisting that such rights must be determined in accordance with Nigerian law.
Applicants’ competing account
The applicants, however, presented a different history of the Jigsimur brand’s entry into Nigeria.
In his written address, counsel to the applicant, Chief Muoneke Paschal Oluchukwu, said CAN AFFORD Products and Projects (Pty) Limited, owned by Perumal Chetty, was appointed Nigerian distributor of the product in 2012.
Oluchukwu said the distribution relationship was subsequently formalised in an agreement dated January 1, 2016.
According to him, Christian Onunkwor Ekene, a director of Jigsimur Plus, approached Chetty in 2014 seeking to become the sole distributor of Jigsimurproducts in Nigeria.
He said Ekene was subsequently introduced to Rouxnel Ungerer to obtain the product and facilitate the necessary regulatory approval from the National Agency for Food and Drug Administration and Control (NAFDAC).
The applicants also acknowledged that CAN AFFORD secured Nigerian trademark registrations for the Jigsimur name, logo and label in 2021.
However, counsel said the commercial relationship subsequently deteriorated over the production of different product sizes allegedly without approval from the South African parent company.
The competing accounts have now placed the Nigerian trademark regime, the parties’ distribution agreements, and the history of the Jigsimur brand’s use in Nigeria at the heart of the dispute.
While Jigsimur Plus relies heavily on its 2018 Nigerian trademark application, prior commercial activities and alleged authority from JigsimurSA Original Pty Limited, the applicants rely on an earlier distribution relationship dating back to 2012, formal documentation from 2016, and the subsequent Nigerian trademark registrations obtained in 2021.
The parties also disagree over the legal effect of rights and judgements obtained in South Africa on intellectual property rights enforceable in Nigeria.
With Jigsimur Plus challenging the Administrative Panel’s September 2 decision, the Federal High Court is now expected to determine the competing claims over the ownership, registration, protection, and distribution of the Jigsimur brand in Nigeria.
Wale Igbintade
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