As to the final test of damages the onus of proving them lies with the plaintiff. Counsel for the
plaintiff submitted that quite often damages are proved through a diversion of sales.
Counsel for the plaintiff then added that the introduction of the defendant‟s product in 2009 on
the market had an adverse effect on the plaintiff‟s sales however no such proof was tendered in
court. In this regard counsel for the plaintiff relied on the case of Parke Davis V Opa Pharmacy
[1961] EA 556 where it was held that proof of damage is not in every case essential to enable the
plaintiff to maintain his action if he knows that the defendant is acting so as to pass off his goods
as those of the plaintiff. That it will be assumed that the plaintiff is thereby prevented from
selling as many goods as those he would have.
Counsel for the defendant however submitted that the sales chart produced in court did not show
a decline in the plaintiff‟s products even when the defendant‟s products were on the market.
Counsel for the defendant submitted that the plaintiff had to show that the drop in sales if at all
was attributed to the existence of the defendant‟s goods on the market. He therefore concluded
that the plaintiffs have not been able to show that the alleged passing off occasioned any loss or
damage to its goodwill or business. He maintained that it was not a quia timet action since the
acts arose 3 years prior to the suit.
The damage in question on the authorities means the damage to good will. Bainbridge in his
book Intellectual Property (Supra at p.670) states that damage may take different forms which
includes lost sales, the fact that the defendant‟s product is inferior and consumers think it‟s the
plaintiff‟s and lastly erosion or debasement of a name that is exclusive and unique to the
claimant.
The learned author asserts the view that a claimant must be able to satisfy court that he has or he
will suffer substantial damage to his good will. In this regard mere speculation will not suffice.
In this case I am afraid the plaintiff failed to aid Court with evidence of actual damage to the
good will of its biscuits. As counsel for the defendant submitted even the sales figures shown to
Court by the plaintiff did not show a drop or slow down of sales. This may be because the
defendant‟s products were on the market for a short time namely September 2009 to April 2010
before being withdrawn. The situation may well have been different if the defendant‟s products
were still on the market. A repeat of this however has to be avoided by the defendant.
In answer to the issues framed for trial I find in conclusion
a) That the get up of the defendant‟s biscuits is similar to that of the plaintiff
b) That the similarity is likely to cause confusion
c) There has indeed been passing off of the plaintiff‟s product.
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