Maurilait Ltée (“Maurilait”) has, since February 1980, been producing, commercializing, marketing and selling curdled milk under the name of “Dahi” and since 1981 under the name “Super Dahi”.
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In 1981, Maurilait obtained a court order restraining La Laiterie de Curepipe (“La Laiterie”) from using the words “Dahi” and/or “Super Dahi” on curdled milk which it was selling to the public. In 2010, Maurilait obtained a perpetual writ of injunction prohibiting Innodis Ltd from commercialising or selling commodities and products under the name “Dahi” written in any manner whatsoever on its packaging. In February 2011, it came to the knowledge of Maurilait that La Laiterie was distributing/ commercializing/ selling “Lait caillé” and “Lait caillé sucré’ in containers with the words” Fresh Dahi” on the labels. Maurilait applied for and obtained an interim injunction prohibiting La Laiterie from doing same. In July 2011, La Laiterie gave an undertaking that it would stop the commercialization and sale of any product which bears the word “Dahi” on its label, pending the determination of a main case. However in November 2011, Maurilait found that La Laiterie was continuing to sell its products using a packaging with the words “Fresh Dahi”.
The claim of Maurilait against La Laiterie was on the basis that the distribution/ commercialization and selling by La Laiterie of its commodities/ products with the words “Fresh Dahi’ on its labels were both unlawful and misleading inasmuch as: (a) in view of the goodwill acquired by Maurilait on the word “Dahi”, Maurilait was the sole person/ entity entitled to use the said word “Dahi” in respect of “Lait Caillé and/ or curdled milk (b) the Defendant was acting in contravention of the court order restraining La Laiterie from using the words “Dahi” and/or “Super Dahi” on curdled milk sold to the public.
At first instance, the trial Judge found that: (a) Maurilait had failed to establish that it had proprietary rights which were being violated by la Laiterie’s use of the words “Fresh Dahi”, (b) it cannot be said that there is any attempt on the part of La Laiterie to deceive customers by passing off its products as being those of Maurilait, (c) there was no evidence of any member of the public being induced to believe that La Laiterie’s product is a product of Maurilait, (d) there was no likelihood of any confusion between the product of Maurilait and that of La Laiterie, the two having a completely dissimilar packaging and visual appearance.
As it appeared that the emphasis had been put on the passing off action under common law, a fundamental question that arose in the course of the present appeal: “Could Maurilait rely on a passing off action which finds its source wholly in English common law in order to obtain the legal remedy sought against La Laiterie?”
The Court of Appeal held that: (a) it would not be in order to determine the issues in accordance with English common law, (b) the source of the law relating to the issues under consideration are essentially the Civil Code, the Protection Against Unfair Practices Act 2002 and the Patents, Industrial Designs and Trademarks Act 2002, and (c) a complaint for any act or conduct which amounts to a passing off, may be actionable as ‘faute” (“concurrence déloyale”) under Articles 1382 and 1383 of the Civil Code.
It followed that the issue as to whether Maurilait had acquired any proprietary legal right which entitled it to the exclusive use of the word “Dahi” in Mauritius could only be determined in the light of legal principles embodied in the above-mentioned legislations and which are now applicable in Mauritius.
The Appellate Court added that English case law and authorities may be of valuable assistance to interpret the application of the law in relation to any question regarding unfair practices under the Protection Against Unfair Practices Act 2002 and the Patents, Industrial Designs and Trademarks Act 2002 where the language is comparably similar to English law on the subject.
The Court of Appeal concluded that the learned trial Judge wrongly proceeded to decide the case by virtue of the legal principles enunciated under English common law instead of applying the legislation in force in Mauritius such that the judgment given was not well founded in law.
Although invited to proceed with the determination of the case in the light of the principles applicable in respect of an “action en concurrence déloyale”, the Appellate Court decided that it would not be appropriate to do so since such action has several features which are quite distinct from a “ passing off” action under English common Law. However, since the issues which could arise between the parties were not finally determined on the merits, the court non-suited the claim. READ Less >