The National, Wednesday 8th May 2013
THE National Court has dismissed with costs a suit by British American Tobacco (BAT) against TST 4 Mile Ltd for allegedly importing some counterfeit cigarettes six years ago and infringing its copyright.
Justice Derek Hartshorn said BAT had failed to prove that TST was responsible for bringing in the cigarettes and had control of all the goods in the container concerned.
Pointing to the different security seals on the container, he said there was a possibility that the container had been tampered with during its transit from Dalian in China to Port Moresby via Singapore and Lae where it had remained for seven days.
According to the bill of lading, the security seal for the container as it left Dalian was 257385 but when Customs officers opened it in Port Moresby, the seal read 39142B.
“Given that the security seal number at the point of destination is not the same as the number given on the bill of lading for the container when it was loaded at Dalian, the consignee, TST, and indeed this court, cannot know that the container has not been tampered with in transit,” Hartshorn said in his written judgment in Port Moresby last week.
“There is no evidence that explains amongst others, why the seal number is different, whether the seal was changed, whether the bills of lading and the cargo manifest all incorrectly record the seal number and if so why.
“Counsel for BAT submits that there is a mistake but there is no evidence of this.”
Hartshorn said BAT must prove that TST had possession of the cigarettes if he was to find the trading group guilty of infringing the Trademarks Act.
He said, however, that BAT had failed to satisfy the court and “the relief sought should be dismissed with costs”.
In its application for declaratory and injunctive relief filed in 2008, BAT said Customs officers seized counterfeit Pall Mall cigarettes in a container addressed to TST in September 2007.
It claimed that as TST was the consignee of the goods, the company was therefore in possession of all the goods in the container which also included nappies.
TST’s counsel, Gaden Lawyers, submitted that there was no evidence that anyone connected with TST was associated with counterfeit cigarettes.
“TST is no more responsible for the container arriving with nappies in it than it would be if it had ordered a taxi and the taxi that arrived had an illegal substance in the boot,” counsel said, adding that the container could have been opened and resealed at any of the several ports on its voyage.
“TST does not know how the cigarettes came to be in the container, and TST had nothing to do with the cigarettes at all.”