Economy & Trade, Headlines, Latin America & the Caribbean

TRADE-JAMAICA: Ting and Zing Do Copyright Battle in US Court

Patrick Smikle

HOLLYWOOD, FLORIDA, Oct 30 1997 (IPS) - Sunday afternoon listeners to WAVS, Florida’s main Caribbean-oriented radio station, are used to the fiery prayers of evangelical preacher, Dennis Grant.

However, last Sunday, the prayers were different in both style and content. “I’m gonna pray on behalf of Zing, that we be victorious,” was Grant’s introduction.

“Father in the name of Jesus again we are being trampled on…our rights our freedom, our dignity. Everything is being taken away from us. But right now we curse the devil…”

The ‘Zing’ on whose behalf Grant made supplication is a grapefruit- flavoured soft drink manufactured by Kingston Miami Traders (KMT) and distributed in Florida by Atlantic Traders, two U.S.-based companies owned by Jamaican-Americans Patrick Cha-Fong and his wife Christine.

The “devil” Grant cursed is Desnoes and Geddes (D&G) Limited, the Jamaican bottling firm which produces another grapefruit- flavoured drink, Ting.

And the victory for which he sought divine assistance is in a trademark and brand-name lawsuit brought by D&G against the Cha- Fong’s and their two companies as the two sides battle for a share of the lucrative soft drink market in the U.S.

“No weapon that is formed against this Jamaican and his company shall prosper,” Grant continued. “No weapon that is formed against those who advertise, those radio announcers, those who drink, those who consume the product…we come on their behalf in the name of Jesus…”

But there was only one reference to the ‘Almighty’ when the hearing began this week in the Federal District Court in Miami before Judge Fredrico Moreno. That was in the swearing in of the eight jurors who will decide the case.

In an opening statement D&G’s lead attorney, Robert Kennedy, who specialises in patent, trademark and copyright law, outlined the history of the more than 80-year old Jamaican bottling company and the launching of its grapefruit-based soft drink, Ting, in 1970.

He said D&G’s marketing efforts in the U.S. targetted the Jamaican and wider Caribbean communities. In Florida the distributor was the Cha-Fong’s KMT.

In 1995, he said, D&G discovered the existence in Florida of another grapefruit-based soft drink being marketed under the name Zing. The distributor was KMT. The manufacturer was another Cha-Fong company,

Kennedy said the content, packaging and approach to marketing the two products were similar, enough to cause confusion. A consumer intending to buy Ting could easily buy Zing by mistake.

He said the Cha-Fong’s had deliberately chosen a name similar to the D&G product in an effort to “ride on its coattails.” The D&G charge of trademark infringement also extends to the line of soft drinks the Cha-Fongs launched in 1994 along with Zing and which they promote under the brand name “Jamaican Reggae Style.”

D&G claims this too seeks to piggyback on its line of soft drinks marketed in the U.S. as “genuine Jamaican.”

Kennedy said that over a 20-year period D&G had built the visibility and credibility of the Ting brand through expensive advertising and promotional campaigns. He said a brand name was the most valuable part of a company and the Cha-Fong’s should be made to pay compensatory damages for their attempt to piggyback on D&G’s efforts.

Attorney for the Cha-Fongs, Michael Webber, told the jurors the case was about competition not confusion. Zing and Ting were dissimilar in so many respects he said, there was no possibility of consumer confusion.

He said the KMT product was virtually sodium free, and contained more grapefruit. Pointing out that D&G was owned by the British entity ‘Guinness,’ Webber painted the Cha-Fong’s as an enterprising Jamaican couple who had built a small but successful company in the U.S. which was now being bullied by a big British transnational.

He said there is nothing Jamaican about the D&G soft drinks. They are bottled in the United States from a concentrate, which although made in Jamaica, contains no Jamaican materials. Also, several ingredients are added during the bottling process.

The Cha-Fong’s and their lawyers are placing considerable emphasis on the couple’s ‘Jamaicaness’ to underscore their right to use the name Jamaica in their marketing and promotional efforts. This is also the point around which they have been attempting to mobilise the support of the Jamaican community in Florida.

An enthusiastic, if somewhat amateur public relations campaign has been mounted on WAVS. Freelance programme presenters for whom the Cha- Fong’s represent substantial advertising revenue, have been telling listeners that the suit against the Cha-Fong’s is an attack on Jamaicans as a whole and a loss could have dire consequences for the community.

At least two of these producers/presenters have been subpoenaed but this has not dampened their support. “I’d like to implore the community to come out in your numbers to support another Jamaican. This is a Jamaican trying to make a living and he’s being persecuted because he’s using the name of his own country. It’s our heritage. It’s our legacy… we should not be forced into giving up our birthright,” said nighttime presenter, Vonnie McGowan.

It was the same approach taken by the couple’s public relations consultant, Chester McCulloch. “…if you have an interest in your heritage be there tomorrow morning,” he said.

Grant made a similar appeal but through a higher power: “Father we pray that you will stir the hearts of Jamaicans to reach out to that court tomorrow morning to give their support.”

The Cha-Fong’s will be hoping that their lawyers’ appeal to the jurors have more impact than did the several appeals to the Jamaican community for support. The public gallery in Federal District Court No.4 was virtually empty on the first day of the hearing. Only one person not directly connected to the case showed up.

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