Mabibo Vows to Defend Its Exclusivity Rights On Windhoek Beer

MABIBO Beer Wines and Spirits Limited (MABIBO) has said it would continue enforcing its decree issued by the Kinondoni District Court, prohibiting any person from importing and selling Windhoek Branded Beers in Tanzania without securing its written consent.

This follows a decision reached by the Fair Competition Tribunal (FCT) recently to the effect that the Fair Competition Commission (FCC) had not issued any decision capable of being revised, but was still conducting investigations on a complaint on exclusive rights granted to Mabibo over the beer brand.

Such statutory registered exclusive user rights granted to MABIBO over the Windhoek beer brands in Tanzania had also already been re-confirmed by a Court with competent jurisdiction.

“Mabibo will among other measures intensify pursuit of its criminal complaint against those who are disobeying the court’s decree,” the Company’s International Independent Consultant, Mr James Rugemalira, told the ‘Daily News’ in Dar es Salaam on Wednesday.

In the decree issued by Resident Magistrate Sundi Fimbo on October 15, 2010, the court declared, among others: that nobody was allowed to sell in Tanzania market Windhoek beer which does not bear code number MB66, except where specific written consent of Mabibo had been sought and obtained.

“It is ordered that the defendant, its owners, agents, directors, servants and other unknown persons who are directly or indirectly related to defendant be permanently restrained from importing Windhoek Premium Lager beer where they have not formally applied and obtained written consent of Mabibo.”

The court warned that failure or refusal by the defendant, its owners, agents, directors, servants and other unknown persons who are directly or indirectly related to the defendant or any other persons, to comply with the prohibition orders shall amount to contempt of the orders of this court.

It was purported that on October 17, 2013, the FCC ordered Mabibo to stop issuing information about the exclusive right to import the beer brand pending investigations into the matter and that it should cease demanding competitors to seek its consent to import or distribute Windhoek branded beers.

Following that purported FCC order Mabibo filed an application at the FCT requesting for call of the record of the FCC proceedings with a view of satisfying itself as to the correctness and legality of the purported FCC orders and revise them.

But, the FCT under the chairperson of Hon. Judge Razia Sheikh rejected the application on account of what the FCT termed lack of jurisdiction to revise non existing orders of the FCC.

Mr Rugemalira pointed out that Mabibo was not a dominant player in the Tanzania beer market as defined by the Fair Competition Act and, therefore, it was entitled to enter into any exclusive agreements with Namibia Breweries Limited on the importation and distribution of Windhoek Beer. Mabibo has exclusive rights over importation and distribution of Windhoek branded beers in the country.

It has since the year 2007 been distributing Windhoek Premium Lager Beer under specific mark of MB66. But there were some unscrupulous people who have been smuggling the beers into the country, thereby not only making Mabibo to suffer loss of sales revenue but also the Government of Tanzania to lose billions of Shillings in Evaded Tax Revenue.

According to Mr Rugemalira, Mabibo has spent and continues to spend a lot of money in terms of promotions and advertisement of Windhoek in order to reach volumes for producing the brand locally.

The company’s lawyer and legal adviser, Mr Respicius Didace pointed out that infringers of Mabibo’s rights were causing tremendous damages, financially and economically and Mabibo Reserved its full rights to institute claims for damages in civil proceedings in courts or Tribunals with competent jurisdictions.

He said that Mabibo would also consult with the Tanzania Revenue Authority (TRA) to investigate whether on the available clear evidence of tax evasion, the smugglers of Windhoek and therefore the tax evaders should be prosecuted as provided by law.

Late last year, the Managing Director of Namibia Breweries Limited (NBL), Mr Hendrik van der Westhuizen, paid a visit in Tanzania to assess the Windhoek market, and expressed his disappointment over the unchecked smuggling of the Windhoek beer brands in Tanzania. “What is produced in South Africa should be sold in South Africa and is meant for South Africa and not any other country.

The importation of South African Windhoek Beer and distribution of the Windhoek beer brand outside South Africa is illegal and outside our agreement,” he told the ‘Daily News’ in an interview.

The MD said that NBL has a registered user agreement with Mabibo for exclusive importation and distribution of the Windhoek beers in Tanzania and currently the arrangement is that Windhoek for the Tanzania Market is bought by Mabibo from Namibia.

Any other Windhoek Beer without code MB66 into the Tanzania Market is illegal parallel trading, he said, and was outside their agreement.