relation to any goods in respect of which it is registered and in such manner as to render the
use of the mark likely to be taken as being use of a trade mark.
Mr. Mpanga, counsel for the Plaintiff, submitted and I so find that the toothbrushes imported
into Uganda by the defendant were labelled or branded in such a way as to make any person
believe that they are the products or toothbrushes of the Plaintiff Company. The Plaintiffs
packet at the back has the words “Manufactured by Nice House of Plastics---”. The
Defendants packet has similar statement at the back. Both blister packs in the inside have the
Plaintiff‟s name “NICE HOUSE OF PLASTICS LTD”. The packets are of the same colour.
Save for the minor differences pointed out by the Plaintiff‟s Company Secretary, who by
virtue of her employment with the Plaintiff Company was very familiar with the Plaintiff‟s
product and get-up, there are a number of striking similarities in the get – up of the two
products. The Plaintiff‟s evidence clearly show that the Defendant had no other reason of
importing into Uganda toothbrushes labelled and packed as NICE TOOTHRUSH and NICE
respectively. The Defendant was using the Plaintiff‟s trademarks namely NICE and NICE
TOOTHBRUSH as marks of origin of the imported toothbrushes. I therefore find that the
Plaintiff has proved that the Defendants usage of the Plaintiff‟s said trademarks amounted to
infringement of its trademarks by the Defendant.
Issue No. 3. Whether the Defendants action in 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. In Abercrombie & Kent Ltd v/s Abercrombie & Kent (U) Ltd [1997 – 2001
UCL 157 as to the cause of action of passing-off C.K Byamugisha J. (as she then was) stated:
“The legal basis for an action of passing off is that it is wrong for the Defendant to
represent, for trading proposes, that his/her goods on the market or the business is
that of the Plaintiff. It is immaterial whether the representation made is effected by
direct statements or by using the badges or get ��� up by which the goods or business of
the Plaintiff are known by the ordinary consumers”.
In Keerly‟s Law of Trade Mark at page 203 it is stated thus:“The principle of law may be very plainly stated, that nobody has a right to represent
his goods as the goods of somebody else. How far the use of particular words, signs
or pictures, does or does not come up to the proposition enunciated in each particular
7