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It is also my firm view that even without that letter of distributorship it is clear that the
relationship between the plaintiff and the 2nd and 3rd defendant as relates to the suit trademark
was that of agent–principal. The plaintiff therefore could not purport to apply for registration of
the said trademark in its name as it did on 3rd August 2006 without any express authority from
the registered proprietor. The power of attorney that was sought for and issued later was meant to
ratify an act that was done dishonestly to have an unfair advantage over the registered proprietor
and manufacturer.
This dishonest intention came out clearly when the plaintiff initially sued the 1st defendant for
allegedly infringing its trademark and passing of its goods as the plaintiff’s when it knew very
well that the 1st defendant was the agent of the 2nd and 3rd defendants who are the owners of the
said trademark in China where the goods are also manufactured from and just shipped to
Uganda. The Plaintiff also knows very well that it does not manufacture PANASUPER batteries
and so the sole purpose of registering that trademark in its name would only be the human
ingenuity of its managing director, who personally met the representative of the 2nd and 3rd
defendants, devised to unfairly take advantage of the situation and block their PANASUPER
batteries from being imported to Uganda by any other dealer.
The elaborate definition of fraud quoted above from Frederick J.K Zaabwe (supra) include:“…..all multifarious, means which human ingenuity can devise, and which are
resorted to by one individual to get advantage over another by false suggestions
or by suppression of truth, and includes all surprise, trick, cunning, dissembling,
and any unfair way by which another is cheated. “Bad faith” and “fraud” are
synonymous, and also synonymous of dishonesty, infidelity, faithlessness,
perfidy, unfairness, etc.…”
That definition brings the conduct of the plaintiff as highlighted above within the ambit of fraud.
In the result, I find that the defendants have proved to the required standard that the plaintiff
registered the PANASUPER trademark fraudulently and that answers issue 1 (a) in the
affirmative.
Before I take leave of this issue, I wish to make the following observations:
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