SC grants leave to appeal in action filed by importers of New Zealand milk powder

The Supreme Court yesterday granted leave to appeal against the order of the Commercial Court Judge refusing the application of Petitioners for the grant of an interim injunction against the Respondents, preventing them from making, publishing, advertorial, social media post and/or article and/or in any way or manner promoting their milk products, using or containing allegations that indicate expressly or by implication that imported milk powder and/or New Zealand milk powder contain preservatives, chemicals, poisonous substances, pig fat, palm oil, and/or non-dairy fat.

The three judge Supreme Court Bench comprising Justice Priyantha Jayawardena PC, Justice L.T.B. Dehideniya, and Justice Yasantha Kodagoda PC fixed the matter for argument for 16-17 February 2021. 

The action relates to a course of conduct engaged in by the Respondents acting in concert, which constitutes unfair competition within the meaning of Intellectual Property Act, No 36 of 2003. Respondents, being the competitors of the Petitioners, have engaged in a smear campaign in Sri Lanka to disparage New Zealand milk powder and/or imported milk powder in order to gain a competitive advantage, by creating a fear psychosis among the consuming public, that imported milk powder and/ or New Zealand milk powder is not safe for consumption. 

The Petitioners stated that, in Sri Lanka, prior to border clearance of imported milk powder, they are tested for quality and safety parameters by the Sri Lanka Standards Institution (SLSI), Sri Lanka Atomic Energy Board (AEB) and by Food Laboratories of the Ministry of Health and Industrial Technology Institute. (NIHS). 

President’s Counsel Romesh de Silva with President’s Counsel Kuvera de Zoysa, Counsel Manoj Bandara, Niran Anketell AAL and Rushani Thiyagaraj AAL for the petitioners instructed by Sudath Perera Associates.

Avendra Rodrigo PC appeared for the 1st Respondent.

Kushan de Alwis PC appeared for the 2nd Respondent.