And also that since the Trade Mark has been in use since 1991 and the Respondent’s products
came to the market in 2013, the balance of convenience is in favor of the Applicant.
It was then prayed that application be allowed.
After carefully listening to the submissions of Counsel for the Applicant and taking into
consideration the reply of the Respondent, I wish to point out that the principles for grant of
probability injunctions are well settled in a number of decided cases, some of which have been
relied upon by Counsel for the Applicant.
It is generally accepted that for a temporary injunction to issue, the court must be satisfied that
the Applicant has a prima facie case with a probability of success; that the Applicant might
otherwise suffer irreparable injury. And if the court is in doubt, on any of the two issues, then it
will decide the application on a balance of convenience – See Uganda Law Society & Another
Vs Attorney General [2003] 2 EA 694 (CAU); where the case of Giella Vs Casman Brown &
CO. Ltd [1973] EA 358 was cited.
The Court of Appeal clearly stated in that case that “ According to the those 3 principles
stated, the burden of the Applicants is to satisfy court, that there are serious questions to be
tried in the suit, and secondly, that on the evidence before the court, there is a probability
of the applicants being entitled to the relief asked for…. At this stage proof of the facts
deponed in the affidavit evidence is not required. What is required at this stage is to show
prima facie case and probability of success, not success.”
In the present case, Counsel for the Applicant submitted that the question before court is whether
the Applicant’s Trade Mark is being infringed and passed off by the Respondent. And whether
selling products under the Applicant’s Trade Mark is calculated to cause and perpetuate
confusion in the market and will cause irreparable damage and loss to the Applicant.
The trade name on the copies of the products presented to court look similar although the
spelling is different.