The Court of Appeal has begun hearing a case involving a trademark controversy in which Oheneba Kasempa Enterprise has appealed against a ruling of the High Court given in favour of Macbells Company Limited.
The Commercial Division of the High Court on October 23, 2013 ordered Oheneba Kasempa Enterprise to pay GH�30,000 as special damages to Macbells Company Limited for wrongfully accusing and harassing the latter of imitating its �abensuo� alcoholic beverage.
The court, presided over by Mrs Justice Gertrude Torkornoo, also awarded Macbells Company general damages of GH�10,000 and ordered Oheneba Kasempa Enterprise to pay costs of GH�8,000.
Furthermore, the court slapped a perpetual injunction on Oheneba Kasempa Enterprise restraining it from seizing or in any way interfering with Macbells Company�s right to production and sale of �Xtra Time Abe Nsuo Ginger Liquor,� either by itself, assigns or agents and or particularly the police.
At the end of the trial, the court held that Oheneba Kasempa Enterprise did not have an exclusive right to the use of the palm tree as a trademark.
According to the court, had Oheneba Kasempa Enterprise not taken the strange legal position that it had rights over the depiction of a palm tree on any type of �abensuo� liquor, it would have spared Macbells Company the unnecessary pain and hardship of police arrests, raids and the court action.
It said the court necessarily evaluated what Oheneba Kasempa Enterprise should have expected to be the consequences of its acts in accusing Macbells Company as imitating its products when it had not taken steps to identify and establish exactly where the production of the said commodity was coming from.
The court said the Supreme Court had made it clear that when a party acted in an unreasonable manner, knowing it would cause costs to another person, then it was appropriate that damages awarded were not token, but reflective of the unwarranted pain caused.
�The plaintiff has claimed both special and general damages. I have no doubt at all in my mind that the plaintiff is entitled to damages for the unwarranted harassment that the defendant has put it through,� the court further held.
Dissatisfied with the ruling, Oheneba Kasempa Enterprise, represented by Mr Yaw Tenkorang, filed an appeal, praying the higher court to reverse the entire judgement in its favour, including the damages and costs.
According to the grounds of the appeal, the judgement was against the weight of evidence on record, while the trial judge misdirected herself that the police who effected the arrest on suspicion of imitation of the appellant�s product failed to produce evidence.
In addition, the appellant claims that the trial judge erroneously held that it failed to prove that Macbells Company was secretly imitating its product.
It further said the trial judge erroneously held that Macbells Company Limited was entitled to damages and cost for unwarranted harassment by the police at the instance of Oheneba Kasempa Enterprise, pointing out that such damages and costs were punitive, excessive and burdensome and must be set aside.
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