Judge slams ‘never-ending’ trademark war over beer name
Marketing material for San Miguel Brewing International's Red Horse Beer - the subject of an endless trademark argument in the courts.
Image: Supplied
A judge in the North Gauteng High Court in Pretoria has seemingly lost his temper over “never-ending litigation”.
In a recent decision, dealing with trademarks, Judge Graham Moshoana stated that the parties have been “embroiled” in lawsuits for the past five years.
The case deals with international company Power Horse Energy Drinks, which registered two trademarks in 2015.
Meanwhile, San Miguel Brewing International (San) which is also an international company later applied to register trademarks.
Power Horse opposed that registration and, “ultimately, the opposition was referred to this court in terms of the Trade Marks Act,” the judgement reads.
Power Horse says on its website that it makes energy drinks “precisely designed for those leading an active lifestyle and requiring a regular dose of energy to stay fit”.
San Miguel Brewing International, meanwhile, is the Philippines' largest brewery with a market share of over 95% as of 2008, notably producing San Miguel Beer. It was established in 1890.
After Power Horse opposed San’s registration of the trademarks, San turned to the Trade Marks Act, wanting Power Horse’s trademarks removed from the register because, it claimed, it hadn’t used them.
Then the matter was meant to go to the High Court, with Moshoana saying “various attempts were made for the parties to consent to the referral of the expungement [removal of the trademark] application to this court. All of those attempts drew blank.”
Finally, the matter was set to be heard in the High Court.
As a result, there were two matters being heard pretty much at the same time: one before the court to have the trade mark removed, and the other in the trademark office for San to have its trademark registered.
San makes a beer named Power Horse.
San wanted the court case paused while the Trade Mark Registrar considered its request to have Power Horse’s trademark off the register.
That application was opposed by Power Horse, and the judge ultimately dismissed it.
“Literally few days before the hearing of the opposition application, San launched a stay application,” wrote the judge.
In dismissing San's application, Moshoana said it had failed to prove it would suffer “irreparable harm” if the pause was not granted.
The judge also found no meaningful overlap between the High Court and Registrar proceedings.
In a scathing judgment, Moshoana said the two beverage companies had been “embroiled in a never-ending litigation since the year 2020”.
Moshoana added that “there was no visible ending sight of this litigation”.
The judge added that the trademark disputes seemed to be “conducted tortuously” with parties taking “a nonchalant approach to finality”.
“In fact, given the timing of the application, there is merit in a submission that the application was a postponement application in disguise,” Moshoana said.
The judge was particularly critical of the San's approach.
“Why was the stay application so vociferously opposed? Why was it labelled a postponement in disguise? This Court is left in wonderment.”
Moshoana concluded that the two matters could proceed separately without risk of conflicting outcomes.
“They are capable of running side by side and no conflicting decisions are possible to be made in respect of them,” he said.
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