A fact deemed to be admitted by any rule of pleading need not be proved unless the court
otherwise deems at its discretion that it should. In the premises and taking into account the
evidence summarised above, the plaintiff‘s assertion that the defendant passed off its goods as
that of the plaintiff is undisputed and proved and therefore issue number 2 is answered in the
affirmative.
Remedies:
The plaintiff's counsel relied on the evidence of PW2 on the effect of the passing off to the sale
of the plaintiffs "Colgate double action" toothbrushes declining as a consequence of the
counterfeit ―Colage double action" toothbrushes of the defendant. Furthermore PW2 testified
that the plaintiff used to supply each of the defendants supermarkets with 70 dozens of the
Colgate double action toothbrushes and in paragraph 13 he testified that the defendant sold the
counterfeit toothbrushes at Uganda shillings 24,000/= each or per dozen. The defendant made
sales worth Uganda shillings 26,880,000/= between February to September 2016. He proposed a
sum of Uganda shillings 26,880,000/= as general damages for passing off.
Counsel further prayed for general damages for infringement of trademark. He submitted that the
defendant was motivated by the need to make profit at the expense of the plaintiff and the
damage that the plaintiff‘s trade Mark may have suffered as a result of the use of the mark by the
defendant and other related factors. He proposed Uganda shillings 20,000,000/= as general
damages for infringement of the plaintiffs trade Mark.
With regard to passing off, the plaintiff's counsel further prayed for punitive damages. He relied
on the case of Haria Industries versus PJ Products Ltd (1970) 1 EA 367. He submitted that
where an award of general damages considers restitutio in integrum or compensation for the loss
suffered; in the above case it was held that the rule for restitutio in integrum has two exceptions.
The plaintiff may become entitled to pecuniary damages in excess of the actual amount that is
suffered where the action complained of was committed deliberately with a view to making a
profit out of the action. In that case it was held that the nature of the "get up" chosen by the
defendant was chosen deliberately with a view to commit a wrong in order to benefit. In that case
in addition to the compensatory damages, the court may add an element to show its displeasure
of the act of the defendant. Under this heading counsel proposed that damages of Uganda
Shillings 50,000,000/=.
Counsel further prayed for an order for delivery for destruction of all the infringing toothbrushes
found in possession of the defendant.
Lastly the plaintiff seeks for costs of the suit and interest from the date of judgment on the other
awards till payment in full.
Decision of Hon. Mr. Justice Christopher Madrama
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