In this case the existence of the applicant’s trademark is not in dispute. It is not
even challenged. There are issues as to whether third parties not being the
applicant can also transit Supermatch cigarettes through Uganda to Southern
Sudan. As it is the said third parties especially Mastermind are not parties to this
application and this question still therefore remains in the balance. There is
evidence that Mastermind has been prohibited from importing Supermatch into
Southern Sudan. This too is not denied. To my mind this points to the applicants
having a good prima facie case.
As to irreparable injury in the case of Britannia Allied Industries Vs Sunrise
Confectionaries Ltd MA 0288 OF 2005 I held that for such cases of intellectual
property violations it may not be easy to properly assess the level of irreparable
loss and therefore determine whether damages may suffice. Loss may arise not
only form loss of sales but also good will. In this case the respondent has not been
clear on the issue of smuggling because it states that it has been contained and yet
in their letter dated 12th August 2011 (marked R7 to the affidavit in reply) they
write to Mastermind that Supermatch cigarettes are the most smuggled cigarettes
from Southern Sudan into Uganda. Smuggling can to my mind lead to loss that is
not easy to quantify.
As to the balance of convenience in the event of doubt I can only refer to the
authors of Halsbury’s Laws of England 4th Edition; Volume 24 Paragraph: 938,
where it is written that;
“…The court’s Jurisdiction in the protection given to trade marks rests upon
property, and the court interferes by injunction because that is the only
mode by which property of this kind can be efficiently protected.”