Barbara Gayle, Staff Reporter
MUSSONS JAMAICA Ltd. has been given the greenlight by the Supreme Court to distribute safety matches in Jamaica under the brand name 'Three Plumes' until a suit brought against it by Beal Industries Ltd. has been heard.
Beal had applied to the court for the extension of an injunction to restrain Mussons from distributing the matches which Beal said was an infringement of its trademark.
Mr. Justice Lennox Campbell after hearing legal arguments from attorneys-at-law Sandra Minott-Phillips and Ronald Young, instructed by Myers, Fletcher and Gordon refused to grant the extension.
ALLEGED INFRINGEMENT
Beal has brought a suit in the Supreme Court against Mussons and Trinidad Match Company (TMC) arising from the alleged infringement.
The judge, in turning down Beale's application, granted its application for service to be made to TMC outside of the jurisdiction. Beale and TMC are manufacturers of matches and are both members of CARICOM.
Beal claimed in its application that Mussons intended to distribute matches in Jamaica under the brand name 'Three Plumes' in breach of Beal's registered trademark.
USING TRADEMARK FOR YEARS
John Lanigan, Beal's managing director said in his affidavit that its trademark was registered on August 22, 2002. He said that TMC had for years been selling matches under the brand name 'Three Plumes', in other Caribbean islands but up until recently had never attempted to sell its brand of safety matches in Jamaica.
Beal said in early March 2004, it discovered that Mussons imported a container of safety matches into Jamaica bearing he brand name 'Three Plumes'. which was purchased from TMC. Beal said it wrote to Musson informing them of its registered trademark and asked it to desist from selling or distributing matches bearing the 'Three Plumes' brand.
Mussons also responded through its lawyers that TMC and Beal had an arrangement whereby TMC would not sell matches in the Jamaican market so long as Beal did not enter any of the other CARICOM markets. Mussons said Beal broke the arrangement by commencing sales in Guyana and St. Lucia with its 'Comet' brand of matches.
Managing director of Mussons, Paul Burke, gave an affidavit in opposition to Beal's application and alluded to the agreement between TMC and Beal. He said Musson had been advised by TMC that it had applied to the Registrar of Companies to have Beal's "Three Plumes" trade mark invalidated and removed from the Trade Mark Register on the basis of bad faith. He exhibited a copy of the TMC's application for invalidation.
The judge in turning down Beal's application said that if Mussons were to succeed at the hearing of the suit, damages may not be an adequate remedy. The judge said that Beal's business was already in operation and had been tested although for a brief period by the importation of the "Three Plumes" brand distributed by Mussons.
He said Mussons was in the process of establishing a market. "If ultimately successful, they (Mussons) would lose the momentum of continuing to develop its share of the total market. During the period leading to trial, others may establish themselves in that market.
"In the circumstances of this case, Mussons would suffer seriously should an injunction be imposed, causing the belief in the market place that they have facilitated an injunction of another's trademark. The balance of convenience lies in favour of Mussons", the judge said.
