Section 6 of the Trademarks Act provides that the right of a proprietor of a trademark “shall
be deemed to be infringed by any person, who not being the proprietor of the trademark or a
registered user of the trademark using by way of the permitted use, uses a mark identical with
it or so nearly resembling it as to be likely to be taken either –
(a)
as being used as a trademark; or
(b)
in a case in which the use is use upon the goods or in physical relation to them
or in an advertising circular or other advertisement issued to the public, as
importing a reference to some person having the right either as proprietor or
as registered user to use the trademark or to goods with which that person is
connected in the course of trade.”
For infringement to arise, the mark alleged to infringe a registered trademark must be used in
a trademark sense. That is as a symbol that the goods originate from the proprietor of the
mark thereon or that there is connection in the course of trade between the goods and the
mark or trademark.
Ms. Sarah Walusimbi testified that around July/August 2005 the Plaintiff Company received
information from an Enforcement Officer of the Uganda Revenue Authority (URA) that they
had impounded goods of one Moses Buule which had been imported into the country which
goods comprised of cartons of toothbrushes bearing the Plaintiff‟s trademarks. The Plaintiff
on the basis of that information lodged a complaint with URA. They were provided with
samples of packets of the impounded toothbrushes. On examination the packets were found
to contain toothbrushes bearing the mark/brand “NICE TOOTHBRUSH” while the
packets/packaging had on them the mark/brand “NICE”. The packaging was also identical or
very similar in appearance and impression to that used by the Plaintiff in its business. The
witness tendered the Plaintiffs packet received as exhibit P3 and the sample of the packet
supplied by URA as Exhibit P4. The packets of the toothbrushes consigned to the Defendant
bore the mark “NICE”. The said mark is identical to the Plaintiff‟s trademark NICE for
packets of toothbrushes registered as per Certificate No. 24787 – Exhibit P2. The blister
packs for each individual toothbrush consigned to the Defendant also had in it the mark
“NICE TOOTHBRUSH”. It was tendered as Exhibit P7. The witness also tendered the
Plaintiff‟s blister pack for an individual toothbrush as exhibit P5. It had also the mark “NICE
TOOTH BRUSH”. The two blister packs were very similar in appearance and impression.
The Plaintiffs toothbrush was tendered as exhibit P6 while a toothbrush from the sample
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