“OUR CREAMY GOODNESS” VERSUS “OUR MILK”: THE COWBELL SAGA

Hello. 

So, I’ve been toying with this idea for a while now and today, which is exactly 2 months since I was called to the Nigerian Bar, seems like the best day to begin. 

Welcome to my blog! In this space, I will be analyzing issues through the lens of the law, attempting to bring the law closer to home to you, so that you are not left bereft of the knowledge of what is expected of you legally and what expectations you can have of others. I hope you continue to join us every time we talk about legal issues here. We’ll be starting off with something that caught my attention a few weeks ago, I hope you learn a thing or two as you read. 

On the 22nd of August, 2025, the National Agency for Food and Drug Administration and Control (NAFDAC), put out an alert on the circulation of counterfeit powdered milk. This milk was designed as an imitation of the 17 grams satchet of the popular Cowbell Milk produced by Promasidor Nigeria Limited, a brand that has been in existence in Nigeria since 1993. Now, Cowbell is one of the most popular milk brands in Nigeria, it is basically a household name and has been for decades, from the “cowbell, our milk” adverts to those billboards that sported cows driving cars and doing human activities, to Cowbellpedia and the Cowbell sponsored scholarships, Cowbell milk has been one milk brand that Nigerians have become accustomed to.  

Now, someone got the “inspired” idea to ride on the back of the reputation and trust that Cowbell milk has garnered through the years to push their own milk product into the market under the guise of it being the original cowbell milk. This imitation of the milk came in the same blue packaging, albeit a lighter shade than the original Cowbell packaging, and had such close resemblance to the original Cowbell milk that unsuspecting customers would simply pick the milk off a shelf and asssume, without thorough inspection, that they have purchased the real deal. 

In a follow-up post on X, NAFDAC went further to highlight differences between the original Cowbell milk and the counterfeit, to include:  

• While the original Cowbell milk has the phrase “Our Creamy Goodness” written on its packaging, the counterfeit has the phrase “Our Milk” written on its own packaging. 
• The original Cowbell Milk has the batch details written via laser printing while the counterfeit has it’s written with ink. 
• The coding in the original milk was done on the coding area while the coding for the counterfeit was done in random areas of the satchet. 
• The sealing and cutting of the vertical sides of the original milk was automated, thus more precise, while the sealing of the counterfeit was done manually. 
• Of course, the milk content itself was different; while the original product was filled with creamy milk, the content of the counterfeit did not seem like milk. 

Now, you can agree with me that all of these differences are not things a person would normally avert their mind towards taking keen notice of, so the counterfeit could definitely have gone on undetected in the market for a long while. And if an unsuspecting individual bought the counterfeit milk and realized the difference, they would probably just chalk it up to reduction in quality by the producers of Cowbell. I am sure you can agree with me that this is a pretty heinous act by whoever the producers of the counterfeit milk are. However, it isn’t just a bad thing morally, there are also legal implications to this act. 

This act, by whoever the producers of the counterfeit milk are, is known in law as passing off. Now, passing off is a civil wrong, or tort, that occurs where a person, or corporate entity, intentionally misrepresents itself as another, more established, person or entity with the intent that members of the public are misled into thinking that both entities are the same. In Niger Chemists Ltd v. Nigeria Chemists (1961), All NLR 180, the Court held that the essence of passing off is misrepresentation calculated to deceive, which is likely to cause damage to the goodwill of another business. Simply put, the aim of passing off, is usually to mislead the public into patronizing one business while thinking it is another, more established business venture. 

The essence of this tort is to protect businesses from having their intellectual property exploited by someone else without their consent. 

Examples of actions that amount to passing off are: 

1. Using a business name that is, deceptively, similar to the name of another established business. 
2. Deceitfully marketing one product as another, more popular, brand. 
3. Copying another company’s logo, packaging, slogan, or some other distinctive feature that the company has. 
4. Selling expired products of a well established brand as current stock. 

The above listed acts are not the only ways passing off can occur; once the action is one that is capable of making an unsuspecting customer, erroneously, assume that the product presented to them is the same as some other well established product which was their original purchase intention, the tort of passing off has occurred.  

In determining whether the tort of passing off has been committed, there are three key elements that must be proved by the party claiming that the tort of passing off has been committed against them:

1. The already existing goodwill or reputation of the offended party: the party must prove that they already enjoyed an established reputation, and public trust, for doing the kind of business that the offending party sought to copy; this reputation must be widely enjoyed by the offending party. 
2. Misrepresentation by the offending party: the offended party must show that the misrepresentation done by the offending party is one that leads the public to believe that the offending and the offended party are the same business whereas they are not. This can be proved by showing the ways that the offending party sought to imitate the offending party; in the Cowbell milk case, the acts of misrepresentation would include using the same brand name as Cowbell Milk, using the same logo and simulating the packaging, and other such acts. 
3. Damage: the offended party must also prove that they have suffered ‘injury’ to their business, reputation and the goodwill enjoyed from the public.

The requirement for this test has been laid down in a plethora of cases including, but not limited to, Niger Chemists Ltd v. Nigeria Chemists(Supra), Patkun Industries Ltd v. Niger Shoes Manufacturing Company Ltd (1988) LLRJ-SC.

Now what happens when a person is found to have committed the tort of passing off? Can they just say “sorry, my bad” and move on with their lives? Definitely not! There are certain remedies available against a person that has been found to have committed this tort, some accruable to the brand or business whose goodwill was being exploited, others available to the consumer misled into purchasing the product. Some of these remedies for the business include:

1. Declaration that the act of passing off was committed by the actions of the tortfeasor (the person who attempted to pass of their goods as belonging to someone else). 
2. An injunction, preventing the torfeasor from continuing in their act of misrepresentation. 
3. An order of the court, seizing all the counterfeit goods. 
4. An order of court for the destruction of the counterfeit goods. 
5. Damages, monetary compensation, for the ‘injury’ incurred by the business due to the misrepresentation. 
6. In lieu of damages, the offended business may elect to recover the profit made by the offending business from the passing off (Ferodo Ltd v. Ibeto Industries Ltd (2004) 5 NWLR (Pt. 866) 317). 

The offended business is the primary claimant in an action for passing off; however, a customer may decide to get redress against the tortfeasor for being lured into buying counterfeit goods. Some of the remedies that the customers can enjoy include:

1. Rescission of contract; where the customer is one who has entered a contract with the tortfeasor on the basis of the misrepresentation, they may rescind/terminate the contract with the tortfeasor (Akerele v. Atunrase (1969) 1 All NLR 201). 
2. Damages for the ‘injury’ suffered by the consumer due to the tortfeasor’s misrepresentation. 

The ‘simple’ act of attempting to make your business look like another’s in a bid to get funds is not a small matter in law, there are legal implications to it that go beyond the initial contemplations that may run through your mind, so resist the temptation to ‘copy’ someone else’s business. Also, if you have suffered from someone else misrepresenting their business products as yours, you have a right to reliefs by the Court, don’t accept “sorry”, refuse to join the bandwagon of “leave am for God”, protect your business, seek reliefs from the court, the court is there to protect you. 

Quick side note: if, however, your business name is not registered, no matter how popular you are, you may not be able to get protection against someone who comes in later and registers their business with the same name as yours: register your business today!

Thank you for staying with me, do share with others who you think will find this helpful. I would love to hear your thoughts on the matter and if you have any particular topic or issue of law that strikes your fancy, leave a comment and I will try my best to attend to it. 

Till I come your way again,

Your lawyer friend,

Achenyo Salifu, Esq. 

PS. This is the first in the series, subsequent posts will be via a newsletter, I’ll let you know when we launch. Thank you!