By order of Court dated 6th September 2005 summons were served on the Defendant by
substituted service by way of an advert published in the Monitor Newspaper of 18th
September 2005. The Defendant did not file any written statement of defence and the matter
was set down for hearing exparte. Counsel for the Plaintiff was Mr. Fredrick Mpanga. He
framed the following issues for court‟s determination:Whether the Plaintiff is the owner of the trademarks “NICE” and “NICE
Whether the Defendant infringed the Plaintiff‟s trademarks.
Whether the Defendant‟s action in the manner in which he packed and labelled the
toothbrushes imported into Uganda amounts to passing off of the Plaintiff‟s
trademarks and product get – up.
Whether the Plaintiff is entitled to the remedies prayed for.
Issue No.1: Whether the Plaintiff is the owner of the trademarks „NICE‟ AND „NICE
“Trademark” is defined by section 1(1) of the Trademarks Act (Cap 217) thus:
“means, except in relation to a certification trademark, a mark used or proposed to be
used in relation to goods for the purpose of indicating, or so as to indicate, a
connection in the course of trade between the goods and some person having the right
either as proprietor or as registered user of the mark, whether with or without any
indication of the identity of that person, and means, in relation to a certification
trademark, a mark registered or deemed to have been registered under section 39”.
“Marks” is defined to include a device, brand, heading, label, ticket, name, signature, word,
letter, numeral or any combination of them. Proof of ownership of a trademark is by
registration as proprietor thereof on the Register of Trademarks.
A section 6(1) of the
Trademarks Act provides that a person registered as proprietor of a trademark is by such
registration given or be deemed to have given to that person the exclusive right to the use of
the trademark in relation to those goods. Upon registration the applicant is issued with a
certificate as evidence of ownership of the trademark. This is provided for by section 21 of