Battle for CAPS explodes

HARARE – THE intense boardroom battle centred on the use of the acronym CAPS has exploded once again with lawyers representing CAPS Holdings ordering Harare businessman Twine Phiri not to use the name CAPS United for his football franchise with effect from the end of this season.\r\n

The order has been copied to Zifa president Wellington Nyatanga and Premier Soccer League chairman Tapuwa Mata-ngaidze.

CAPS Holdings insist that they are armed with a Supreme Court judgment that bars Phiri from using the acronym CAPS in the identity of his football team and they now want the order to be effected as soon as the current season comes to an end next month.

The pharmaceutical company already has a Premiership franchise registered under the name CAPS FC — but they believe they have exclusive ownership of the acronym — as supported by the Supreme Court order, and now want Phiri to stop using the name CAPS United.

CAPS FC are likely to be relegated at the end of the season, but CAPS Holdings are believed to have already angled a return to the Premiership next season, with their franchise called CAPS United, through a merger with one of the teams in the top-flight league.

CAPS Holdings have been holding secret discussions with a Premiership side for a merger that will create the new CAPS United next season.

CAPS United is a big brand in local football with a rich legacy in the game and the feeling in the market is that whoever controls that name also gets the backing of the fans who have been loyal supporters of the brand.

It is generally believed that CAPS United are the third biggest football club in the country.

When CAPS FC came on board last year, supporters showed their allegiance to the CAPS United brand by remaining loyal to the franchise that held that name, which is owned by Phiri and his business partner Farai Jere.

CAPS FC were labelled a rebel offshoot, largely meant to distabilise the peace at CAPS United, and were rejected by the majority of fans who decided to remain loyal to the franchise owned by Phiri and Jere.

There was also a general outpouring of sympathy for Phiri and Jere by the fans, who felt that the two businessmen had sacrificed a lot to keep the CAPS United franchise alive, especially at a time when CAPS Holdings appeared not interested in sponsoring football.

While CAPS United continue to enjoy great support, CAPS FC are terribly short on support.

But CAPS Holdings believe Phiri is benefiting indirectly from the use of their trademark and if they take over the CAPS United franchise, they will get the same massive support that the businessman’s franchise is enjoying.

The irony is that both teams are fighting relegation although CAPS United, who have won the two major knockout tournaments in the country this season, have better chances of surviving.

But CAPS Holdings appear to be planning a return to the Premiership next season, through a marriage with one Premiership club, in which the identity of their franchise will be CAPS United.

The pharmaceutical company’s lawyers — Mutamangira and Associates — have written a letter ordering Phiri to stop calling his franchise CAPS United once this season comes to an end.

"We refer to the above issue (use of the CAPS acronym) and to the Supreme Court judgment in case number SC 159/07. We act on behalf of CAPS Holdings.

"We have been instructed to demand a written and unequivocal undertaking from yourselves that you will desist from using the CAPS acronym with effect from the end of the current PSL/Zifa soccer season.

"We firmly believe that it is in our entitlement to cause you to stop using our name forthwith but in the interest of football, we are prepared to allow you to use the name until the end of the season.

"We thus request the written undertaking within the course of seven days.

"Failure on your part to comply with our demand will leave us with no option but to seek recourse with the Zimbabwe Football Association and the Premier Soccer League to have you barred from registering using the CAPS name.

"Your continued use of our name has no basis at law and clearly amounts to an infringement of our duly registered trademark.

"Considering the numerous legal matters by yourselves against us, whose decisions have all gone against you, we believe that it’s in our mutual interest for you to comply with our demands.

"Be guided accordingly," read the letter from the CAPS Holdings lawyers.

No comment could be obtained immediately from either Phiri, who is attending Soccerex in South Africa, or Jere last night.

Initially, it was Phiri who took CAPS Holdings to court in an attempt to bar them from using the CAPS acronym in the identity of the franchise that they acquired from Buymore.

In June 2007, High Court judge Justice Bharat Patel dismissed Phiri’s application, launched through his company Twin Con Industrial Suppliers Private Limited, that intended to give him exclusive use of the CAPS acronym.

Phiri then appealed to the Supreme Court, hoping that the constitutional court would overturn the High Court ruling.

But two months ago, Supreme Court judge Justice Vernanda Ziyambi upheld the decision of the High Court.

"The appeal lacks merit and is dismissed with costs," read part of the judgment.

Ziyambi sat with fellow Supreme Court judges Misheck Cheda and Deputy Chief Justice Luke Malaba.

Phiri, through his lawyers, had submitted that the use of the acronym CAPS by CAPS Holdings was interfering with the goodwill, brand, colours, regalia and insignia of CAPS United FC and its parent company CAPS United FC (Pvt) Ltd.

CAPS Holdings opposed the application, arguing that the company enjoyed intellectual property rights over the name CAPS and had also registered trademarks in that regard.

Phiri had pointed out that when he bought the franchise from CAPS Holdings, the package included exclusive rights to the name.

Bharat then found that Twin Con had failed to justify its claim to the exclusive use of goodwill, brand, colours and acronym, leaving Phiri to seek recourse in the higher court.

In March this year, the Supreme Court reserved judgment in the case before making a ruling in September that Phiri’s battle to bar CAPS Holdings from using the CAPS acronym had no basis.

Last night, The Herald could not establish whether that could be translated to suggest that Phiri could not use CAPS United as the identity of his team’s franchise.