Traders argue over sales of TRFU apparel [1]
Thursday, November 12, 2015 - 21:45. Updated on Thursday, November 12, 2015 - 22:51.
Commercial retailing of Tonga's Rugby Union and World Cup apparel caused an argument between two Nuku'alofa traders that ended up in the Nuku'alofa Supreme Court - when one tried to stop the other from importing and selling apparel.
However, the Chief Justice has discharged an initial order restraining a local broker and her agents from selling apparel that had the Tonga Rugby Union logo, Kukri brand name or IRB mark printed on it, on 8 October in a civil action brought by Leiola Group Ltd. He said the plaintiff's case was not strong and the defendant had acted in good faith.
Leiola, an importer, retailer and wholesaler in the duty free market, with one major retail store in Nuku'alofa, brought the action against defendant Cherrie ‘Aho, trading as Goshen Custom Broker, her agents, servants and employees.
Chief Justice O.G. Paulsen said Leiola's main argument was that the apparel sold by the defendant was counterfeit because it was a copy of the Kukri design, infringing Kukri’s copyright. Kurki is presently the official manufacturer of the Tonga Rugby Football Union (TRFU) jerseys.
He said none of the apparel the defendant had sold or wishes to sell bears the Kukri brand. However, the plaintiff alleged the apparel is still counterfeit as copying the Kukri design.
“If this is so it is Kukri and not the plaintiff that has a right of action…the plaintiff has no proprietary interest in Kukri's copyright and in fact no relationship with Kukri other than a a purchaser of its goods for resale. It has no goodwill derived from Kuri's copyright, nor a right to sue on Kukri's behalf.
"Similarly, the plaintiff has no proprietary interst in the logos of the IRB or the Rugby World Cup,” the Chief Justice said.
An agreement between TRFU and plaintiff created no more than contractual rights and obligations between those parties.
"By entering this agreement, Leiola does not attain any interest in the logo. The goodwill associated with the 'Ikale Tahi logo clearly remain the property of TRFU and not the plaintiff," Mr Justice Paulsen stated.
License
Leiola submitted that a written agreement dated August 30, 2011 granted them the exclusive license by TRFU Inc. to be its agent in Tonga selling its goods and apparel, including the uniform worn by the Tonga National Rugby Team at the 2015 Rugby World Cup, but also other items designed by its current and former contracted manufacturers.
The defendant challenged this action arguing that the apparel in dispute was manufactured and sold to a partnership with TRFU and with Angus Naupoto trading as Ultimate Traders.
Ultimate Traders had been appointed as the TRFU's merchandising provider for the remainder of 2015 and an affidavit by an employee Hailame Minoneti said the design, pattern and logos shown of the jerseys sold by Ultimate Traders to the defendant were approved by the TRFU.
Dispute
This action was brought by Leiola after it became aware on a Facebook page of one of the defendant’s employees that she was intending to sell TRFU apparel to mark the World Cup.
On 23 September, the Chief Justice granted an ex-parte interim orders, which included an order restraining the defendant from taking custody of printing, manufacturing, importing, distributing, advertising, selling or otherwise parting with possession or dealing any counterfeit or copies goods or apparent that uses or has printed on it the Tonga Rugby Union logo, the Kukri brand name or the IRB mark.
The defendant applied for this to be discharged and a hearing was held on 6 October leading to the judgement on October 8.
World Cup
"A further factor is that both the plaintiff and the defendant sought to take advantage of the Rugby World Cup to sell their product. Unfortunately, the window of opportunity to do so is very small given Tonga’s failure to qualify for the next round of the World Cup, and to restrain the defendant will effectively settle this action."
However, the Chief Justice said he did not think it appropriate to restrain the defendant in those circumstances, “rather if the plaintiff wishes it I would accommodate its interests by ordering a speedy trial.”