September, 2016, he testified that the order directed the inspectors to take evidence by way of
still photos and video evidence which order was served on the registrar of trademarks on 16th
September 2016. They carried out a search at the trademarks registry to conform the registration
of Colgate-Palmolive company as the proprietor of the "Colgate" Mark and obtained certified
copies of registration confirming the registration which I have set out above. On 20th September,
2016 in compliance with a court order the inspected the respondent's premises in Mbale in the
presence of representatives of the defendant Mr Akabwai Erasmus and a policeman attached to
Mbale Police Station. They found thirty dozens of right infringing toothbrushes on the shelves
and remove them and kept them in the custody of the Inspector of trademarks at the Uganda
Registration Services Bureau Offices at Georgiana House on George Street, Kampala. They also
went to the defendants witnesses in Mukono but found no infringing goods. PW1 played a video
and showed still photos of the infringing materials which are toothbrushes which cannot be
distinguished from the Colgate toothbrushes both in appearance in all respects and in the
colours. Everything is alike save for the word "Colage‖ instead of Colgate. The goods had been
displayed side-by-side with the Colgate toothbrushes and could not be distinguished from each
other.
PW2 Mr Edward Lubega testified that upon inspection they found that the defendant was selling
counterfeit toothbrushes bearing the Mark "Colage double action" in the same shelves as the
"quality double action" toothbrushes in both its supermarkets at Mukono and Mbale. He further
testified that according to his inspection the getup of the counterfeit " Colage double action"
toothbrush being sold by the defendant at the supermarkets was too similar with the get up of the
genuine Colgate Double Action toothbrush as to confuse customers intending to purchase the
Colgate double action toothbrush. He produced in evidence photos of the toothbrushes in their
pockets side-by-side and I am satisfied that his observation is accurate. The toothbrush as part is
exactly the same and also in the markings in all respects save for the word "colage". All the
letters written in the same colours and the two cannot be distinguished from each other except by
close scrutiny when one will discover the different spelling of the word "Colgate" as
counterfeited by the word "Colage".
He testified that most customers who bought the counterfeit product did so in the honest belief
that they were buying the "Colgate double action toothbrush". He also established a drop in the
sales of the "Colgate double action" toothbrushes as a direct result of sale by the defendant of the
counterfeit "Colage double action" toothbrushes. He further testified that the plaintiff suffered a
loss for every counterfeit toothbrush sold in the market because it was made at the expense of the
genuine "Colgate double action" toothbrush.
The plaintiff‘s action was not contested by the defendants. They simply filed no defence. I agree
with the Inspector of trademarks that the two toothbrushes look alike in all material respects and
is likely to confuse customers of Colgate-Palmolive.
Decision of Hon. Mr. Justice Christopher Madrama
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