Rumbles in Nigeria’s FMCG space, as Fearless, Pop Power bicker over product identity

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In standard marketing practice, one of the key elements of branding is differentiation. That is the art of creating a distinct identity for a product through unique nomenclature, packaging, colour, tagline and other signs and symbols. The unwritten marketing rule is that such signs and symbols must be peculiar to the product, since they differentiate it from others in the segment of the market where it operates.

For brand analysts, therefore, product identities are key in marketing since they reside in the subconscious of the consumer, and are usually recalled by the consumer at the slightest interface with the brand.

They represent a major ‘pull factor’ for any brand, hence the reason brand custodians go to any length at engaging professionals and creatives that can help create such unique identity. Interestingly, one of the widely held beliefs in marketing is that no brand makes it to the top without possessing key differentiation elements.

In Nigeria, the sanctity of a brand’s identity, and why it should be protected at all costs, can be seen in the nation’s law, as provided for by the Trademarks, Patents and Designs Registry, Commercial Law Department of the Federal Ministry of Industry, Trade and Investment, under the Trade Marks Act, Cap T 13, Laws of the Federation of Nigeria 2004 and the Trademark Regulations 1990.

The law argued that, besides being unethical, infringing on product identity or Trademark rules is at variance with the law guiding Trademark Regulations, and as such, can attract heavy sanctions.

But, just like in other climes, the Nigerian market, which boasts of a consumer base of close to 237 million, seems not immune to the contentious issue of Trademark infringements.

Disputes arising from infringements of trademarks copyrights, identity theft and product style copying abound, as seen in the recent face-off between Rite Foods, makers of Fearless Energy Drink, and Mamuda, producers of the Pop Energy Drink.

Mamuda is being accused of having its Pop Power share similar identities in bottle, cover and size, with that of Fearless, a product of Rite Foods Limited.

Unfortunately, this is not the first time the company is being accused of such trademark infractions. In 2022, the Coca-Cola Company, had sued same company for infringing on the Coca-Cola Trademark in Nigeria, accusing Mamuda of using the word ‘pop’ when selling its fizzy drink in Nigeria for years. The bone of contention, then, was whether Pop Cola, a product sold by Mamuda Beverages Nigeria limited, was an infringement on the Coca-Cola trademark.

Mamuda Beverages was again brought before the court on the 28th day of January, this year, by Rite Foods Limited for infringing on the trademark and design elements of its Fearless Energy Drink with the launch of a similar-looking product, Pop Power.

Pursuant to this, on 4th day of March, 2025, judgment was delivered, with the grant of injunctive reliefs, including Anton Piller orders, after which Mamuda opted for a settlement.

After an admittance of the violation, Mamuda undertook to destroy all infringing Pop Power Energy Drink products, as part of the terms of settlement, and this was duly adhered to.

The company equally pledged to desist from any further violations of Rite Foods’ intellectual property rights.

Surprisingly, Rite Foods is again crying out that the pledge by Mamuda is not being respected. The company, it says, is no longer obeying the earlier consent judgment, since it has again rolled out, through the backdoor, a new package that appears even more strikingly similar in identity to the Fearless Energy drink than the previous subject of Consent Judgment for Pop Energy destruction.

It accused Mamuda of circumvention of a consent judgement previously agreed between the parties’

In an unexpected turn, Mamuda didn’t only reintroduce Pop Power into the market, but with only cosmetic adjustments to its appearance. Rite Foods maintains that these changes are minor and do little to address the original issues of consumer confusion.

Reports from the market indicate that the new Pop Power continues to be informally referred to as “small Fearless,” reinforcing concerns that the revised product may not only breach the spirit of the earlier agreement but could also undermine consumer clarity and brand differentiation.

A source, close to Rite Foods Limited, explained that, besides creating a huge confusion for consumers, the company is also concerned that many of the Fearless Energy consumers have been, albeit, erroneously, mistaking the lower quality product for their market leader product.

This sequence of events, in Rite Foods’ view, raises broader questions about adherence to judicial outcomes and the integrity of the system safeguarding intellectual property rights.

By proceeding with a product that perpetuates confusion so soon after a formal resolution, Mamuda’s actions risk compromising confidence in dispute resolution mechanisms critical for fair business practice.

In reaffirming its position, Rite Foods stressed its continuous commitment to the protection of its brands, its consumers, and the principles of innovation and fair competition in Nigeria’s marketplace. The company emphasised that genuine business growth must be anchored on originality and respect for intellectual property, rather than imitation and fraudulent business practices.

But, Memuda, the producer of the Pop Energy drink, is seeing Rite Foods’ fresh move as “bullying”, insisting, through paid posts in several publications, that it had complied with the earlier consent judgment by the court. The company is hinging its argument on certain slight changes it has made to the Pop Energy drink to rationalise its current strikingly similar package to that of Fearless Energy Drink.

Legal experts, however, see trademark, passing off and similar identity concerning businesses and products as infringement.

For instance, a Principal Partner at Salawu, Akingbolu & Co., Kabir Akingbolu, described passing off as a strict and serious commercial offence and infringement when it bothers on trademark.

“Looking at the issues at hand, the two bottles; Fearless and Pop Power, are a clear case of passing off. To start with, Fearless has been in the market for years. It came earlier, and it has become known and registered in the consciousness of consumers.

“From the cover, to the bottle, to the size and even the colour, put side by side, it is obvious that Pop Power was out to benefit from the market acceptability profile and identity that promoters of fearless have built over the years. To this end, it’s safe to conclude that Pop Power is liable for passing off Fearless drink as a registered brand and under commercial law that guides competition, it is never allowed.

“It’s a law cleverly put in place so that owners of established and registered trademarks are not infringed upon or exploited. Reaping from the efforts of another manufacturing company to sell your product is illegal,” he stated.

Speaking further, Akingbolu argued that Fearless, having been in the market for years and registered in the consciousness of all, including those who are not lettered, has earned consumers’ trust and loyalty, which can be eroded by Pop Power infringement if not immediately nipped in the bud.

“For instance, if you put the two products before illiterates and kids who could neither write nor read, the probability that they would choose indiscriminately is very high,” he stated.