of it. All of this require evidence and the likelihood to cause confusion and passing off is not a
bar to considering such evidence.
The Appellant further unjustifiably submitted that the Registrar took into account the getup of
the outlets of the parties. However the authorities demonstrate that in assessing the degree of
similarity between marks, the circumstances in which they are marketed is a necessary criterion.
There is no authority that lays out exhaustively what surrounding circumstances to include or do
not include and each case should be considered on its own merits.
The Appellant further argued that the Registrar failed to properly give weight to the evidence of
two natures. The Registrar considered the evidence of two witnesses within the context of a
survey report. The two witnesses gave evidence of actual confusion. Where there is actual
confusion, the incidence of likely confusion is higher. In the premises the Respondent‘s Counsel
prays that the court upholds the preliminary objections and if not the ruling of the Registrar and
dismisses the appeal on grounds with costs.
In rejoinder to the preliminary objections:
The Appellant‘s Counsel submitted that the reformulation of heads of argument does not amount
to a departure of the grounds in the notice of motion. The Respondent deliberately misconstrued
the rationale for decision of the court in HCMA No 580 of 2015 Nairobi Java House Ltd
versus Mandela Auto Spares. The opinion of the court is that the amended notice of motion for
consideration reformulated grounds that the Appellant sought to substitute for the initial grounds.
The court therefore made the comparison of the grounds in the proposed amendment and the
notice of motion. Following the guidance of the court in the ruling, the Appellant's heads of
agreement are a subset of the substance of the grounds of appeal.
In rejoinder to the market context submission and the average consumer classification
The Appellant‘s Counsel submitted that in making the necessary assessment of the likelihood of
confusion, the construction of the average consumer is a matter of law. In Specsavers
International Healthcare Ltd versus Asda Stores Ltd [2012] EWCA Civ at paragraph 51 and
52, the Court of Appeal of England and Wales observed that the general approach to be adopted
in assessing the requirement of likelihood of confusion is that the likelihood of confusion must