plaintiff. Furthermore on account of long and continuous use coupled with extensive sales all
around the world, the plaintiff‘s products and trademarks have acquired tremendous reputation
and goodwill amongst consumers all over the world. The well-known character of the plaintiff's
trademarks is reflected from the plaintiff‘s worldwide sales in 2015 which resulted in revenues of
US$16.034 billion and a net income of US$1.384 billion.
Counsel submitted further that it is not disputed that the defendant intentionally made
misrepresentations to the public leading them to believe that the defendant‘s goods were the
plaintiffs. The still photos and video of the defendant supermarket shelf at Mbale clearly
demonstrate that the defendant's intention was to mislead the public into believing that the
defendant‘s goods were those of the plaintiff. The manner in which the defendant arranged the
plaintiff‘s toothbrushes side by side with the infringing materials is the evidence. In the case of
Haria Industries versus PJ Products Ltd  one EA 367 sir Charles Newbold, president of the
East African court of appeal at Nairobi observed that the test in determining whether or not the
defendant would upon the market and article which would be likely to deceive is whether an
average customer, without any pre-size the collection of the article that he wants but acting with
reasonable care, would, if he sold the applicant complained of, be likely to be confused.
Counsel submitted that in the instant case the two toothbrushes if placed side-by-side would be
almost difficult to tell apart. Lastly he submitted that the plaintiff suffered damages because
consumers wishing to buy its toothbrushes have been misled into buying toothbrushes of the
defendant thereby causing loss to the plaintiff. The toothbrushes sold by the defendant constitute
loss to the plaintiff.
I have carefully considered the plaintiff‘s suit as disclosed in the plaint, the evidence adduced in
support of the plaint as well as the submissions of counsel and the authorities cited.
The matter proceeded in default of a written statement of defence by the defendant and an
interlocutory judgement was entered by the registrar on 19th October, 2016 upon the registrar
being satisfied that the defendant was duly served and failed to file a defence within 15 days
notified in the summons to file a defence. Accordingly the matter was fixed for formal proof.
Prior to the formal proof proceedings the plaintiff applied in Miscellaneous Application No. 902
of 2016 for an ex parte order under section 79 (2) of The Trademarks Act 2010 and section 86
(1) the Trademarks Act to authorise the plaintiff to enter the respondent's premises for purposes
of inspection and seizure of the infringing materials as evidence. The order was issued on 15
September 2016. In the ruling I noted that the exercise of the power upon an ex parte application
should be restricted to the inspection of or removal from the infringing person's premises or
control of the right infringing materials only and not to grant an injunction that is wider than that.
This would enable the respondent, if it sustains any damages to claim against the applicant when
the matter comes for consideration after hearing the defendant/respondent on the ground that the
Decision of Hon. Mr. Justice Christopher Madrama
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