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apart from the PANASUPER trademark which this court has already found to have been
fraudulently registered, the plaintiff does not manufacture any product by that name.
It is therefore the well considered view of this court that, firstly, in the absence of any
PANASUPER product belonging to the plaintiff the claim of passing off which by definition is
“… falsely representing one’s own product as that of another in an attempt to deceive potential
buyers” is not sustainable. The plaintiff was merely an importer of the product from the 2nd
defendant who is the producer. This is confirmed by PW1’s evidence that the first time he met
Mr. Shore who was acting for the 2nd and 3rd defendant at a trade fair in China there were
different brands of batteries displayed at their stalls including PANASUPER. Therefore the 2nd
and 3rd defendants were manufacturers and exporters of PANASUPER batteries long before the
Plaintiff’s managing director had any dealings with them.
Secondly, as I already stated under the first issue the plaintiff was the agent of the 2nd defendant
in Uganda from 2006 to 2012 when a new agent who is the 1st defendant was appointed as per
Exhibit D16. The defendants are therefore lawfully dealing in the goods and cannot be said to be
passing off.
Thirdly and most importantly, following my finding that the plaintiff fraudulently registered the
suit trademark, there is no basis for its claim of passing off.
On the whole, it is the finding and conclusion of this court that the 1st and 2nd defendants have
not infringed the suit trademark or passed off their batteries as those of the plaintiff. This
answers the 2nd issue in the negative.
Issue 3
What are the remedies available to the parties?
The plaintiff prayed that this honourable court be pleased to grant it the following orders;
i.
A permanent injunction restraining the 1st& 2nd defendants by themselves and/ or
their agents from using the “PAN SUPER” and or “PANASUPER” trademark;
ii.
An order for the delivery up or the destruction upon oath of all infringing articles
in the 1st defendant’s custody, possession, power or control;
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