Goddie Ofose writes on how soft drink companies in Nigeria are battling one another to dominate the new PET bottle energy drink segment as major contenders- Red Bull, Power Horse retreat.
In the early 2000, the carbonated soft drink market in Nigeria was a straight fight between Nigerian Bottling Company bottler of Coca-Cola products and SevenUp Bottling Company bottler of Pepsi products.
Coke had a straight fight with Pepsi, Sprite was on a head on collision with 7Up and Fanta met its match in Miranda. Until now, the battle is still fierce. For an average consumer, it is either Coke or Pepsi, Sprite or 7up and Fanta or Miranda.
The trajectory changed, when Big Cola entered the fray. It was not too long that the big two: Coca-Cola and 7Up, gave the new entrant a bitter lesson that soft market in Nigeria was not about volume of content.
It was not too long Big Cola learnt a bitter lesson and retreated to its original position.
Because Big Cola failed in its bid to upstage the big two, or perhaps, break into the space and gain some marker share, there was a new revolution in Rite Foods. Rite Foods launched Bigi variants and upset the market when even the established soft drink brands were feeling the heat.
Like every industry, there is a cabal and in soft drink market, one can simply say, Coca-Cola and 7Up are the cabals. At the time Bigi came in, it was like the cabals had concluded plans to hike the price of carbonated drink per bottle. But that seems to have thwarted by Bigi entrant as the brand remained resolute and maintain previous price of N100 per bottle.
Entry that change the game:
Coca-Cola and Pepsi never battled on the pedestal Rite Foods came to upset the market. Coke and Pepsi have always claimed superior on taste, however, Bigi came in to empower the poor hawkers on the street by giving them more than Pepsi and Coke.
Ifeanyi Ekeh, an Ebonyi indigene and a Lagos active traffic hawker, told The Industry that it was very easy to embrace Bigi. According to him, “It was at a time Coke and Pepsi was not giving us anything and Bigi came and give us everything,” he said.
Ekeh, who is the regular soft drink hawker on Mobolaji Bank Anthony in Ikeja revealed that the margin on Bigi was attractive and everyone fell for it. Yes, Coke and Pepsi are superior brand, he affirmed but “you go for what put food on your table.”
It would be recalled that when this happened was when Coca-Cola and Pepsi increased their price per bottle to N150 as against Bigi N100 per bottle. Ekeh revealed that because transit consumers do not like to look for ‘change’ that is balance, they simply switch to Bigi that was ready to offer N100 per bottle.
Water battle:
While these organisations were going on holding one another at the jocular, a new segment was created albeit a foreign brands. When Coca-Cola was tired dragging the share of the soft drink market with 7Up, it created a juice segment with Five Alive.
There was an ease in the carbonated drink segment with the launch of Five Live and Eva water. 7up never wanted to go into the juice segment but launch Aquafina water to counter Coca-Cola’s Eva. Aquafina did not stop Eva water sojourn. The water battle lasted few years until the industry was democratized and we started seeing sachet water and other unknown water brands.
Today, like the carbonated soft drink’s fierce battle, water supremacy has abated as Eva and Aquafina have assumed premium status and can be found in highbrow areas in the urban market.
The old horses:
Prior to the new entrants coming in, Red Bull and Power Horse, both foreign energy drink brands have held the market monophonically. Power Horse was the first to arrive the shore of Nigeria but got complacent until Red Bull came in and pulled the rug off the feet of Power Horse.
Both in Can, a traditional way of brewing energy drink, Red Bull and Power Horse kept on this tradition until there was an innovation.
Red Bull and Power Horse tactically made energy drink a premium brand. The Industry once spoke to one of Power Horse’s senior officials, he said, “energy drink is not a mass market product,” he stated with confident.
Unknowingly to these two, the energy drink market has been heavily democratized.
Predator Vs Fearless
For fear of dominance and outright displaced, the Nigeria Bottling Company (NBC) has been dragged to court for trademark infringement on its Predator energy drink, with a lion insignia in resemblance of the well-liked market leader, a product produced by Rite Foods Limited.
In a publication in the ThisDay and the Guardian newspapers editions of Friday, March 19, 2021, court forms initiating contempt proceedings against the Managing Director of NBC were published in respect of injunctions granted by the Federal High Court, Ikoyi against NBC.
In the suit No. FHC/L/CS/92/2021, the plaintiff, Rite Foods Limited, had filed a motion exparte for interim injunction against the defendant, NBC, restraining it from further promoting or using any sales promotion material for its Predator energy drink in a manner that infringes or passes off or that is capable of infringing or passing off the plaintiff’s Fearless energy drink, until the interlocutory application for injunction is determined.
The alleged infringement negates the common law property right in the goodwill of “Fearless” energy drinks and Trade Marks Act, Cap T 13, Laws of the Federation of Nigeria 2004, which offers exclusive rights to get ups and designs of products already in use by a proprietor.
Investigation reveals that the plaintiff, Rite Foods’ Fearless energy drinks, which consist of the Red Berry and Classic brands, were launched into the Nigerian market on June 15 and 16, 2017, respectively, and has gained a wider market share before the NBC’s Predator brand which made entrant in June, 2020.
This points out that the trademark has been in use by the Rite Foods’ brands before NBC’s Predator drink was launched into the market.
According to the plaintiff, it owns the exclusive right to get up which has been a mark of identifying its market leading Fearless energy drink brands.
It posits that with the infringement by NBC, consumers are likely to assume (mistakenly) that the aforementioned energy drinks in the case are from one source.
According to the company, the degree of similarity between the lion symbol on its Fearless brands and the NBC’s Predator energy drink is high, and that since both compete in the same market spectrum, the mark is likely to cause confusion in the minds of consumers, about the source or sponsorship of the brands offered under the defendant’s mark.
Further proceedings for the case at the Federal High Court are slated for March 24, 2021.
However, while the Predator brand is struggling to gain acceptance among consumers, Rite Foods’ Fearless energy brands has attained a very high market share of the lucrative beverage market, cutting across the different demographics, mainly the youth segment.
The Fearless brands provide consumers limitless benefits and contain high quality ingredients.
The energy drinks contain Vitamin B6, a water-soluble nutrient that is part of the vitamin B family, which supports adrenal function, helps calm and maintain a healthy nervous system, and are necessary for key metabolic processes. Also, included is Vitamin B12 which is essential for building blood cells and maintaining healthy nerve cells in the body.
Few cases of trademark infringements in the country were those of Nabisco Inc., v Allied Biscuits Company Limited in 1998, where the trademark RITZ was the issue before the court.
Allied Biscuits first registered the mark eight months before Nabisco, and the court held against the appellant, Nabisco, on the premise that it has not used the mark sufficiently to acquire a reputation for the mark in Nigeria, that its intention is to destabilise the Nigerian market and her economy.
Also on October 18, 1993, Pfizer dragged Iyke Merchandise to court for infringing on its trademark, Combantrin Plus, with the mark Combatinrein, which was likely to confuse consumers.
The plaintiff’s (Pfizer) action for injunction, order of delivery up for destruction of the infringing product (Combatinrein) and general damages succeeded.
Predator fires back:
To counter Rite Foods claims NBC said that they will vigorously contest case against Rite Foods. In a statement from NBC, “We note recent media coverage relating to the legal case between Rite Foods Limited and Nigerian Bottling Company Limited (NBC), regarding the Predator Energy drink. Given that the case is now going through the due legal process, we are limited in what we can say publicly.”
“However, in the interest of clarity and accuracy, both NBC and Predator Energy would like to make two things 100% clear: firstly, we are well within our rights to continue to sell the Predator products and secondly, neither NBC nor its Managing Director, is in breach of any court order.
“Naturally, we will contest the case vigorously and after due consideration of the merits of the case we are confident that the court will confirm our rights based mainly on the facts that the bottles and logos are not confusingly similar and Predator Energy’s established use of the Predator brand and logo in many other markets around the world.
Gainers, Losers:
Rite Foods believes Coca-Cola has a better distribution chain to ouster Fearless in the market with Predator that possess almost similar characteristic of its brand hence its complaint and effort to stop Predator to gain strong entry into the market.
Red Bull and Power Horse are still stuck in their old ways of getting energy drink across to consumer. No consumer in a rural market is ready to part with N500 per can of Red Bull or Power Horse when they can drink same quality and brand for N100 per PET bottle of Fearless or Predator.
While Red Bull and Power Horse are still in slumber and confused on what to do, 7up Bottling Company cashed in with Supa Komando.
A salesman is when he or she knows when to strike. Supa Komando from 7up knows that Coca-Cola Predator and Rite Foods’ Fearless are at each other jugular hence it grand entrance two weeks ago. Now that Fearless and Predator are locked in legal battle, Supa Komando has capitalized on the imbroglio to fester.
On traffic, at the stores and shelves, no one is asking for Fearless or Predator but Supa Komando. Supa Komando is winning while Fearless and Predator are battling passing off infringement and Red Bull and Power Horse are snoring away.
