The defendant laboured to set up the argument that the entire get-up for Marie biscuits as it were
is used world over and is associated with the practice in the market place. This argument in my
opinion cannot stand simply because other samples of Marie biscuits (exhibit A2) tendered by
the defendant in court shows get-ups of Maries in a number of colour packages ranging from
blue, green, gold, purple, white, colourless, blue, brown amongst others.
This shows that is possible to have in the market place Marie biscuits in packages with colours
other than red. This also shows that in other countries too there is effort to distinguish the get up
for Marie biscuits.
That said the defendant seeks for this court to hold that red is a Russian royal colour associated
with the origins of the biscuit and that the get-up as it were is the practice in the industry.
Evidence was given by Mr. Mutiso that the Marie biscuit was created in 1874 to commemorate
the marriage of the Grand Duchess Maria Alexandrova of Russia to the Duke of Edinburg. He
also testified that Marie was a generic form of tea biscuit. However in as much as this may be
true, the market practice does show that Marie biscuits can have get ups with other colours. I do
none the less accept on the evidence before me that Marie is a generic type of biscuit.
Of course if the defendant‟s get up is different from that of the plaintiff there can be said to be no
erosion of the plaintiff‟s good will.
However the fact that the plaintiff has been in the business for much longer than the defendant
raises an eye brow to the fact that the defendant who joined the scene much later has a similar
get-up with that of a major market player.
Bainbridge in his book Intellectual Property Law (supra)reasons at p.641 that there are 2 main
reasons why a trader would wish to pass off his goods or services as being those of another,
established trader. The first is that by doing so, a significant portion of the established trader‟s
custom might be captured because of confusion amongst the buying public as to whom they are
dealing with. The second reason is that sales might be boosted by unjustifiable imputing a quality
to the second trader‟s goods that is widely recognized in connection with the goods of the
established trader.
Similar products in the market place can cause confusion. The question therefore is whether the
two get ups are so similar so as to cause the erosion of good will of one of them that has been on
the market first.
In the case of Brooke Bond KENYA Ltd. V Chai Ltd. [1971] EA 10 Spry Ag.P held that the
likelihood of confusion is not disproved by placing the two marks side by side and demonstrating
how small chances of error may arise. In his words he stated that:
‘It is more useful to observe that in most persons the eye is not an accurate
recorder of visual detail, and that marks are remembered rather by general
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