Innscor International Ltd, Chicken Inn Ltd and Pizza Inn Ltd are set to meet in court, again, following Innscor’s appeal against a decision of the Commercial Court that dismissed its trademark infringement case citing “lack of capacity to sue.”
The Mauritian fast food dealer wants the Rwandan Commercial High Court to quash the decision of Nyarugenge Commercial Court and claims that its case was admissible and should have been heard by the court of first instance.
Innscor went to court looking for an injunction to stop Chicken Inn and Pizza Inn to stop using the names claiming that it (Innscor) has rights over them as registered trademarks in several African countries including Rwanda where it claims to have registered the marks in February 2014.
“The court dismissed Innscor’s case saying it did not prove that it has legal personality, but we surely did provide an authentic certificate of incorporation and we went ahead to present the same certificate during the hearings,” said Safari Kizito, Innscor’s lawyer in his submissions.
Under Rwandan law a company with no legal personality can be sued but cannot sue.
The lawyers of the defendants maintain their stance that the authenticity of the registration certificates presented by Innscor as proof of its legal status is questionable.
Their objection that this certificate “issued by a foreign country’s entity” ought to be confirmed and legalised by the issuing country’s competent authority constituted the basis of the first instance judge’s dismissal of the case.
“We believe the decision of Nyarugenge Commercial Court is fair, and we plead with the Commercial High Court to uphold it,” said the submission prepared by Stephen Zawadi.
“The certificate of incorporation and incumbency is on the list of official documents that according to the website of the office of the prime minister of Mauritius should be legalised before being taken to foreign jurisdiction,” Jean Nepomuscène Mugengangabo, a second defendants’ lawyers argues.
According to the appellant’s lawyer, this procedure was not necessary because “the certificate presented to the court was an original copy which did not necessitate legalisation”.
“The judge made an erroneous interpretation of the provisions of the law he based on to dismiss the case,” Mr Safari said in his submission.
The lawyer accuses his opponents of purposely overlooking his client’s legal personality “to buy time and continue using the marks illegally” and cites its correspondence with the Rwanda Development Board (RDB) as proof of its legal status.
“The defendants recognise the legal personality of Innscor and they have been engaging in out of court talks under the auspices of RDB to try and settle the matter amicably” Mr Safari said.
“Why would they engage in talks with somebody who they consider inexistent?” he asks.
Pizza Inn and Chicken Inn lawyers disagree with this line of thought saying that RDB has its own procedure and requirements when dealing with its clients different from that of courts.
Raising another obstacle to the receivability of Innscor’s case, the defendants want the appeals court to order the appellant to first deposit cash security that it would satisfy the costs and damages that might arise from the case because it is a foreign company with no property in Rwanda.
This objection was raised in the court of first instance but the court did not consider it saying it was not raised within the legal timeframe.
The court has set the hearing for January 18.
If the court rules in favour of Innscor it would send the case back to the commercial court to be heard in substance.
If it confirms the decision of the lower court however, Innscor will not have any other alternative but abandon the case or start it afresh with an authentic incorporation certificate, if any.