The meaning of the word ‘badinaz’ in Mauritian Creole can be understood as ‘badinage’ or ‘plaisanterie’ in French and ‘joke’ in English.
In Badinage Merven v SMS Badinaz, Merven Frères initiated a court case against SMS Pariaz Ltd (previously known as SMS Badinaz) because SMS Pariaz used the brand name ‘SMS Badinaz’ during its business activities.
Merven Frères argued, in particular, that the use of ‘SMS Badinaz’ by SMS Pariaz would amount to passing off and unfair competition of Merven Frères’ brand name ‘Badinage Merven’ and that the defendant infringed its rights in its registered mark ‘Badinage Merven’, which is well known in Mauritius.
Both parties concurred that they use logos representing horse racing with the above-mentioned terms. It was also not disputed that both businesses are in the same line of business; i.e., gambling related to horse racing.
Mauritius’ protection of well-known marks
The judgment, handed down in May 2025, reaffirmed that Mauritian law recognises and grants protection to any complainant that can establish that it owns a well-known mark.
The well-known mark character of ‘Badinage Merven’ in this case was proven based on the following supporting written evidence documenting prior use of the mark and the related logo:
Independent press articles praising Merven Frères’ popularity amongst lottery players, with its lottery operating under the ‘Badinage Merven’ mark and substantial revenues generated;
Long-standing prior use of the mark ‘Badinage Merven’ in relation to Mauritius Turf Club races; i.e., the mark reached a century of existence, with the mark and logo issued with a certificate of registration at the Industrial Property Office of Mauritius; and
Strong brand marketing strategy efforts focused on Badinage Merven, with many publications and advertisements in Mauritius, on radio and television.
The mark ‘Badinage Merven’ therefore held an impeccable reputation and its track record of being associated with the successful business ventures of Merven Frères was undeniable, with more than 100 years documented up to 2023.
Consumers targeted, such as horse racing followers, recognised the mark as genuine and the lottery operating as Badinage Merven had captivated their interest via its substantial lottery prizes and its official link to sweepstakes in the horse racing field connected to the Mauritius Turf Club.
Accordingly, it is essential for brand owners in Mauritius to keep documents proving the well-known character of a mark by collecting and archiving:
Independent articles and publications; and
Official advertising or marketing materials promoted by local major broadcasters and traditional mainstream media that have a huge audience in the domestic market.
Unfair practices and unfair competition
The main argument of Merven Frères was based on the grounds that the acts of SMS Pariaz were likely to damage its goodwill and reputation and mislead the public. In that regard, the court duly referred to Maurilait Production Ltee v La Laiterie de Curepipe (2017 SCJ 125): “In the Maurilait case, the court of Appeal made a thorough analysis of the law governing passing off and unfair competition, held to be founded in French Doctrine and jurisprudence as follows: ‘The source of a passing off action in Mauritius is therefore grounded in articles 1382 and 1383 of the Civil code. Thus the tort of unfair competition as well as its corollary parasitism was imported into our Civil law.’”
The court deemed that the reproduction of the mark and logo by SMS Pariaz was aimed at exploiting the established reputation of the plaintiff’s marks due to the similarities in the wording of each party’s trademark and the design retained.
In fact, the court considered that the last two points were an attempt to “capture effortlessly the players accustomed to the solid reputation of the plaintiff and its corollary, its well-known mark Badinage Merven”. This was confirmed at the launch of SMS Badinaz, with many players cross-checking with Merven Frères if the two business operations were connected.
The administrative manager of Merven Frères gave crucial testimony by explaining that, with the coming into operation of the defendant’s business, he received 20 phone calls from members of the public asking whether SMS Badinaz had any affiliation with the plaintiff’s trade.
The defendant’s argument that the word ‘Badinaz’ in ‘SMS Badinaz’ was completely different from the word ‘Badinage’ in ‘Badinage Merven’ was not deemed relevant and the fact that the defendant did not register its mark ‘SMS Badinaz’ was also mentioned.
The court therefore concluded that all the above was “constitutive of parasitism (parasitic exploitation) on the part of the defendant” via the exploitation of the fame of Badinage Merven.
Sources of Mauritian law
The Merven Frères case further referred to the previously mentioned case of Maurilait, which also marked an important development in Mauritian trademark case law in systematically defining the pillars of domestic law, as listed below:
Statutory laws.
Case law.
In Mauritius, for passing-off actions, there is now express legislation to deal with the protection of intellectual property (IP) rights, so that the law in that area would find its source in:
The Industrial Property Act;
The Protection against Unfair Practices Act; and
The Civil Code.
English common law may be an appropriate source of law in a specific matter where it may be invoked to assist in the interpretation of Mauritius’ national legislation that has been borrowed from English law or that is couched in terms that bear close resemblance to any corresponding English legislation.
Although the lottery known as Badinage Merven ceased operations in December 2023, the impact of its use and its recognised reputation as a well-known trademark in Mauritius will survive far beyond horse racing by entering the field of IP case law essential for understanding the foundations of IP enforcement and how IP protection in Mauritius is regulated.
