By Dickson Jere
When Bharti Airtel of India purchased Celtel and consequently entered the Zambian market, they found three companies were already registered by PACRA which also used the word “Airtel” in their names. So when the well known “Airtel” was also registered, the Zambian ones opposed saying they already took up that name. Simply, no one can register a company with “Airtel” name because it had been taken.
However, the Registrar at PACRA went ahead and used his discretion to register another “Airtel” against opposition by “Airtel Holdings Limited” which was earlier registered. This decision prompted a Court action in the High Court. The owners of the first “Airtel” argued that registering the other one would cause confusion in the market.
After hearing both sides, the High Court Judge agreed with PACRA that there was nothing wrong to register any other company with the word “Airtel” as long as there were other words that goes with it. The Judge further ruled that the Zambian Airtel had not been in viable business operations and therefore did not accrue any goodwill for using the name “Airtel”.
Unhappy with the decision, the losing companies appealed to the Court of Appeal, arguing that the High Court erred to have allowed another company to be registered using the name “Airtel”.
A panel of three Judges heard the appeal and ruled thus;
“We agree with the argument that the inclusion of the word ‘Airtel’ in the 2nd Respondent’s name and in its intended subsidiaries cannot be said to be likely to cause confusion among the public,” the Judges ruled.
The Court said in all the named new companies, the word “Airtel” was not a standalone but accompanied by the combination of other words, which created a distinction.
“The only basis upon which the Registrar’s decision could be overturned by the Court is if the appellant had provided sufficient evidence that in fact, contrary to Registrar’s opinion, confusion had arisen in the market or that the customers had been deceived,” the Judges said.
The Court dismissed the appeal and allowed the registration of all the other “Airtel” companies. These are Airtel Networks Zambia Limited and Airtel Money Limited.
The earlier registered ones were called Airtel Holdings Limited, Airtel Limited and Airtel High Definition Television Limited.
Case citation- Airtel Holdings Limited and Others v PACRA and Others – Appeal No. 238 of 2020 and Judgement delivered in December 2022.
Lecture Notes;
1. This case dealt with the Registration of companies and company names. However, the principles used to arrive at this decision was based on authorities in Trademark law.
2. The principle is that anyone can use generic names but must be accompanied by other words. For example, Manzi is generic name for water but the producers of our mineral water have added valley to be called “Manzi Valley”. Lusaka is generic name but “Lusaka Beer” can be trademarked. So is “Lusaka Tigers” and “Lusaka Pharmacy”.
3. However, the law also recognizes well known brands even if they are not registered. For example, Coca-Cola is well known brand and will be recognized even if someone else registered it with PACRA.
