In Hassanali M. Sachoo v/s Jon Kopings O.V.T [1958] EA 463 Sir Kenneth O‟ Connor, P
quoted Warrington, J in Schweppes Ltd v/s Gibben 8 [1905] 22 RPC 113,619 cited in Kerly
7th Ed at page 646 where he said:“It seem to me that each of these cases must be looked at by itself, and the Judge
looking at the label or the get-up or the device, whatever it may be that is complained
of, with such assistance as to the practice of the trade as he can get from witnesses
must decide for himself whether the article complained of is calculated to deceive or
not”.
The Judge also quoted Lord MacNaghten in Hennessy & Co. vs Keating (9) (1908) 25 RPC
361 where he said at page 367:“The eye no doubt is generally the best test, and you will have to come to a
comparison of the marks or labels sooner or later. Generally, but not always, the
comparison is enough”.
The two quotes above show that in cases of passing off the Judge should also look at the
mark before him to determine the similarities. I had the opportunity to carefully look at the
packets, blister packs and toothbrushes of the Plaintiff and of the Defendant exhibited. I have
found a lot of striking similarities. The witness‟ ability to distinguish between the two
packets and blister packs must have been because she is an employee of the plaintiff
company and was conversant with the nature and packaging of its toothbrushes. Otherwise
they were difficult to distinguish.
Ms. Walusimbi further testified that the Plaintiff was the only Company manufacturing
toothbrushes in Uganda and had been in that business for the last 35 years. That the Plaintiff
Company had over the period acquired a reputation and goodwill in the quality of its
toothbrushes and in the trademarks NICE and NICE TOOTHRUSH and in its product get –
up. Her testimony was to the effect that the general public identified the Plaintiff‟s
toothbrushes from the way they are packed.
Considering all the Plaintiffs evidence before me and the law I agree with Mr. Mpangas‟s
submission that the similarity in the nature in which the toothbrushes imported in Uganda by
the Defendant were branded and packed to the way the Plaintiff‟s brands and packs its
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