BY SAM ALFAN.
Kenya Breweries Limited has dismissed claims by a rival beer maker over the fight to control the design of beer bottles popularly known as brown bottles.
In response filed in court EABL disputed claims that brown bottles are universal and generally the same worldwide in terms of colour, size, shape and general outlook as alleged.
In the response to the case filed by beer manufacturer FRM (EA) Packers Limited, EABL said legitimate beer manufacturers purchase their own bottles after taking into account several considerations including physical design, colour, brand identity, light sensitivity, shelf life among other considerations.
Other considerations include storage and product composition.
“It is at once clear that there is nothing like a universal bottle. All manufacturers choose their bottle design and customize their bottle to meet their unique business requirements,” claims the company in its court documents.
The company claims there are several types of bottles that can be used as containers for beer across the world. The bottles vary greatly in size , shape and colour as this is dependent on the specifications and requirements of the manufacturer.
They said KBL purchases glass bottles from a leading glass maker in Kenya and currently packages its various beer products in over ten varieties of beer bottles.
They added that they have used one of the bottles for over 40 years and is known as the Euro Amber 500 ml bottle.
“It is common knowledge that the bottles are assets that must be purchased and the applicant (FRM (EA) PackerLimited)ed cannot claim ownership or usage rights to the bottle purchased by another manufacturer,” said KBL.
They said FRM (EA) Packers Limited must first demonstrate to court that it is a duly licensed by the relevant authorities to manufacture , import , package or deal in beer products.
FRM (EA) Packers Limited in it court documents had attached copy of alcoholic drink license No. 4495 and excise license to demonstrate that it is licensed to deal in beer products but KBL allege the said license expired on 31 of December 2016.
“The permit to use the standardization mark issued by the Kenya Bureau of Standard (KEBS) and the excise license issued by the Kenya Revenue Authority (KRA) to FRM (EA) Packers Limited only authorize them to manufacture spirits and spirituous beverage but not beer,” KBL claim.
According to KBL , sometime in February 2018, KRA published on its website a list of licensed manufacturers and registered importers of alcoholic beverages as at 31 of January 2018 and FRM (EA) Packers Limited was not listed as a beer manufacturer or importer.
KBL further claims that FRM Packers has failed to establish they have valid interest in Euro bottles.
“FRM (EA) Packers Limited has failed to establish at a threshold level that it has a valid interest in Euro bottles , since it is not a manufacturer or importer of beer. It has no legal right that this court can be called upon to protect in relation to use of the Euro bottles that are used to package beer only,” added KBL.
They added that FRM (EA) Packers Limited brand SANTA KING ICE is a ready drink alcohol beverage with an alcohol by volume of 10% and quantity is 500 ml and the product is said to have made up of purified water, potable spirit and vodka flavors.
According to KBL, Kenya standards 2150:2008, the prescribed alcohol by volume for spirit-based ready to drink alcoholic beverages varies between 3% and 8%.
KBL also claim that court cannot admit hearing a matter relating to people and criminal proceedings that are not before it and proceedings are fatally defective and out to be struck out.
“The alleged criminal cases really revolve around the issue of quality, content , key identifiers , manufacturing, labelling and packaging of alcohol. All matters are regulated by the Standards Act,” KBL said.
A beer company filed a suit in the High court seeking orders to quash the decision by Inspector General of Police to seize it Santa King Ice and other alcoholic beverages products.
FRM (BA) Packers Limited is seeking orders to have IG prohibited from entering into premises of FRM Packers East African Limited, it suppliers , distributors , agents, searching, impounding or seizing Santa King Ice beverages or other products manufactured by the company.
The firm further also wants IG and DPP restrained from summoning, arresting, or charging FRM (BA) agents, employees, suppliers, distributors , retailers, carrying out further investigation or any further criminal prosecution in relations to Santa King Ice and their beverages products.
It is further seeking a declaration that Kenya Breweries Limited and East African Breweries occupy a dominant position in the beer market are abusing dominance in violation of section 24(2) of the competition Act.
The company wants a declaration that the purported registration of initials EABL as a trade mark amounts to the use of an intellectual property right in a manner that goes beyond the limits of fai , reasonable and non-discriminatory use.
It is further seeking orders suspending all further prosecution of FRM (BA) agents, employees, suppliers, distributors , retailers, carrying out further investigation or any further criminal prosecution in relations to Santa King Ice and their beverages products.
According to the court documents,the company says police in collusion with KBL have lodged a an onslaught countrywide campaign illegally and maliciously confiscating and detaining the FRM (EA) Packers limited products and harassing, intimidating , arresting and charging it agents , distributors and retailers who form part of its supply chain alleging the company products are counterfeit.
“FRM (EA) Packers Limited is apprehensive that it agents , distributors and retailers will continue to be exposed to incarceration with the intended consequences of unjustifiable loss of liberty and business,” says the beer company.
They claims that their products are duly licensed and the actions of the police and KBL are meant to stifle competition and drive them out of business.
FRM limited says that it has beer with the brand Santa King Ice which is sold in a universal brown bottles which are conventionally used worldwide by alcoholic beverage manufacturers.
They argue that police actions are based on malicious allegations by KBL that the FRM company is selling its products using their bottles.
The company argue that brown bottles are not available to any other beer manufacturer to patent or trademark.
“Use of brown beer bottles assumed usage long before KBL started using them and no party can claim any novelty or unique attributes of the bottle peculiar,” state the company.
They said KBL alleges that their bottles are embossed with the initials EABL yet they sell products using with engrave or un-engraved bottles which means that they re&use the bottles originating from them.
They told the court that KBL has tried in vain to obtain injunctive orders against their competitors in the industry over the use of the said bottles.
“They have now changed their tactics and are using the police and DCI to advance illegal and restrictive trade polices,” say the company.
