A bitter row over the packaging of beer brewed locally has been active in the High Court since some time in 2016, Keroche Breweries and others suing East African Breweries Limited and its Kenyan subsidiary – Kenya Breweries Limited, over intellectual property and ownership rights of beer bottles of a apecific shape and colour and the embossment of the EABL marker on the said bottles.
In the suit, Keroche accuses EABL of claiming undue ownership of monopoly rights of ownership of beer bottles.
Keroche calls out EABL over alleged unfair trade practices yet even before the verdict is out on the matter, the same brewer is in the middle of a suit – this time through a proxy group, accusing EABL of illegally securing trademark rights over “universally accepted beer bottles”.
In this article, Kurunzi unpacks the contentious matter by exposing Keroche’s mischief in the whole saga and how the Naivasha-based brewer (under Kenya Revenue Authority radar for alleged tax evasion) has attempted to deploy shortcuts to bridge their weak underbelly in the context of packaging their products.
1. Using EABL-branded bottles to package Keroche products
Keroche’s inability to brand their own beer bottles, against a growing demand for their products, saw the company engage in the buying of beer bottles in the shape and brand of EABL to package some of their brands.
Kurunzi understands that EABL always invests in having plain bottles from Central Glass Industries branded in their name by the local glass processing firm as a way of not just distinctively ensuring quality to customers but also maintaining their brand identity.
Keroche, in a bid to avoid branding costs, sought to stop EABL from collecting all beer bottles branded in their name claiming beer bottles were universal and branding them did not amount to substantive, exclusive ownership. As a result of this, they moved to court.
Following the application, a conservatory order by Justice Fred Ochieng restrained Keroche and all its agents from using EABL-engraved bottles in the packaging of their brands.
In the same order, EABL were given leave to go on and mop up all beer bottles bearing their branding from the market. Rattled, Keroche resorted to proxy litigation, leading to the filing of case E471 of 2019 in the High Court, this time under the guise of a distributors association to prosecute matters similar to those pending determination under HCCC No. 88 of 2016.
“… The present and application seek the very reliefs and determination of the very issues that are at the core of of the litigation and which are pending judicial consideration in the earlier suit,” contends EABL in a replying affidavit by Legal Officer – Karen Mate-Gitonga.
“The suit and application are clearly proxy applications instituted at the behest of Keroche Breweries Limited in an attempt to obtain orders that contradict those issued in the earlier suit.”
Question is how can Keroche purport to have a case when their quest is to be allowed to use EABL-branded bottles to package their products?
2. Applicants being represented by Keroche lawyers
Curiously, the applicants of the new matter are represented by the same advocates as those acting for Keroche Breweries – Irungu Kangata & Co advocates.
“This lends credence to the fact that the present application and suit are proxy suits instituted at the behest of Keroche Breweries Limited,” avers Ms Mate-Kitonga.
“The applicants cannot therefore feign ignorance or lack of knowledge of the existence of the Court Order which was issued on 31st May 2017.”
EABL further rubbishes claims by the applicants that they are collecting all bottles and embossing them with their branding, adding the applicants lack the locus standi to make the application since “the application is based on an inaccurate and misleading narrative and misrepresentation of facts”.
The court will determine whether or not the new application by ‘distributors’ will be heard at a seating to be held on 24 January 2020.
3. Possible bribing of KOT to malign EABL
On several occasions, Kenyans on Twitter have been made to believe that Keroche is a victim of unfair trade practices without full disclosure of the material facts on the matter; a cause that has been fought using different hashtags as drivers of the unmerited campaign against the giant brewer.
The latest such smear campaign was captured by Kurunzi News as #BarOwnersRevolt and a clever analysis of the tweets demonstrates possible influence, by Keroche Breweries, on KOT using certain accounts.
“If you check the trend you will notice a certain group of tweeps are behind the trend and it shows clear influence,” observes a Twitter user, who understands how trends are influenced.
