under section 10 (2) of the Trademarks Act. I shall begin with the main controversy which
relates to the provision of services and trademark registration in respect thereof.
I am in agreement with the submissions of the Respondent whose import is that where a Statute
is clear and unambiguous, the first resort of a court of law is to interpret it as it is. This is based
on the jurisdiction of the High Court under section 14 of the Judicature Act cap 13 laws of
Uganda. Under section 14 (2) thereof, the jurisdiction of the high Court shall be exercised in
conformity with the written law in force. These are the statutes and statutory instruments with the
Constitution of the Republic of Uganda providing the basic or foundational norm. Where the
written law does not extend or apply the jurisdiction is exercised in conformity with the common
law and doctrines of equity. Thereafter jurisdiction may be exercised in accordance with any
established or current custom or usage. For that reason some aids in judicial precedence may be
used to cast light on earlier interpretation by courts. Where there are no judicial precedents
interpreting the section in Uganda or East Africa the court can consider persuasive precedents
from England if the section considered is in pari materia with the Uganda section i.e. in this case
10 (2 ) of the Trademarks Act 2010.
In the premises I must first consider the controversy from the interpretations and meaning that
can be discerned from section 10 (2) of the Trademarks Act 2010. How is capability of
distinguishing of services determined? Under section 10 (2) capability to distinguish should be in
relation to services in respect of which it is registered or proposed to be registered. The
capability to distinguish is therefore in relation to particular services. The Trade mark sought to
be registered should be capable of distinguishing particular services of the owner thereof from
other similar services not of the owner or not connected generally with that of the owner.
The second criteria for consideration for registration is section 10 (3) which gives two elements
namely: The Registrar or court may have regard to the extent to which (a) the trademark is
inherently capable of distinguishing goods or services; and (b) by reason of the use of the
trademark or of any other circumstances, the trademark is in fact capable of distinguishing goods
or services. The use of the inherent capability or consideration of the use of the trade mark or of
other circumstances making it capable of distinguishing goods or services is a discretionary
power because of the phrase: the Registrar or the court may have regard to the extent …‖ The
first basic criteria are therefore the capability to distinguish services. According to David I.