Industry giant Maliban asserts intellectual property rights for ‘Maliban Cream Cracker’ in famous ‘red’ pack

An enjoining order was issued by the Commercial High Court of Colombo on 30 September 2024 enjoining Uswatte Confectionery Works Ltd. from manufacturing, packing, stocking, displaying, distributing, selling, reselling, advertising, promoting, and/or dealing in any manner howsoever, any products under the packaging which is confusingly similar and/or identical to the ‘Maliban Cream Cracker’ packaging owned by the industry giant Maliban Biscuit Manufactories Ltd. 

The matter was taken up before Judge K.P. Fernando in the Commercial High Court of Colombo, and upon hearing the submissions made by the Counsel representing Maliban Biscuit Manufactories Ltd., the enjoining order was granted against the Defendant, Uswatte Confectionery Works Ltd. 

Maliban Biscuit Manufactories Ltd. is one of the most trusted and pioneering companies which was founded in the early years of 1954 with humble beginnings and has currently grown into not only a well-embraced brand in Sri Lanka, but one that has also garnered a reputation in 42 countries worldwide and won numerous awards, accolades, as well as certifications such as ISO and many other international recognitions. 

The legal representatives for Maliban Biscuit Manufactories Ltd., making their submissions on behalf of the Plaintiff company, stated that the product in question – the ‘Maliban Cream Cracker’ product which is available in a distinctive ‘red’ colour packaging, has had an islandwide distribution network reaching the far corners of the country, and ‘Maliban Cream Cracker’ in bright red packaging reached the households of every village, town, and city in the country. From wholesalers and grocery stores to makeshift kiosks, the ‘Maliban Cream Cracker’ in ‘red’ packaging became an instantly recognised and much-loved product. It was emphasised to the Court that the infringing conduct of the Defendant Company, Uswatte Confectionery Works Ltd., in attempting to sell and market their cream cracker product in a confusingly similar and/or identical packaging to the ‘Maliban Cream Cracker’ product as a frivolous attempt to mislead consumers amounts to unfair competition, and it is within the rights of the Plaintiff company to assert and protect its rights through these enjoining orders sought from the Court. 

The Plaintiff company further presented facts to the Court stating that the conduct of the Defendant company is a clear violation of unfair competition principles provisioned under Section 160 of the Intellectual Property Act No. 36 of 2003 and in violation of Section 121 of the Intellectual Property Act, whereby engaging in the business with the product in question in a confusingly similar and/or identical manner misleading the public as well as violating the intellectual property rights of the Plaintiff deriving under the laws of Sri Lanka. 

Upon considering the submissions of the Counsel for Maliban Biscuit Manufactories Ltd., the Defendant company was served with the enjoining orders, summons, and notices, ordering them to appear before the Court on 14 October 2024 and present their case. 

Maliban Biscuit Manufactories Ltd. was represented at Court by their Attorneys-at-Law, Senior Counsel Manoj Bandara, Nathaya Nanayakkara, and Chamathka De Silva, on the instructions of Sudath Perera Associates.