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In reply to the objection, the Plaintiff’s counsel submitted that the 1st Defendant is jointly and
severally liable for infringement of the Plaintiff’s registered trademark. He referred to Order 1
rule 3 of the CPR which states as follows;
“All persons may be joined as defendants against whom any right to relief in respect of or
arising out of the same act or transaction or series of acts or transactions, is alleged to
exist, whether jointly, severally or in the alternative, where, if separate suits were
brought against those persons, any common question of law or fact would arise.”
He submitted that under section 36 (2) of the Trademarks Act 2010, the exclusive right to the use
of a trademark is taken to be infringed by a person who, not being the owner of the trademark or
a registered user of the trademark uses by way of permitted use, a mark identical with or so
nearly resembling it, as to be likely to deceive or cause confusion in the course of trade in
relation to any goods of the same description where the use would result in a likelihood of
confusion and in such a manner as to render the use of the mark likely to be taken as a trademark
relating to goods or as importing a reference to some person having the right as owner or as
registered user of the trademark or to goods with which that person is connected in the course of
trade.
The Plaintiff’s counsel submitted that the objection of the 1st Defendant is brought in bad faith
arguing that it is trite law that preliminary objection should be raised at the earliest opportunity
and not when the case has been called a number of times and a scheduling conference has been
completed. He referred to the case of Nassan Wasswa & 9 others vs Uganda Rayon Textiles
[1982] HCB 137 where the court held that:“The preliminary objection itself was misconceived as it was raised at the
wrong time. A preliminary objection by its very nature should be raised at the
commencement of the proceedings. Since it is proper to bring to the notice of the
Court an alleged irregularity which must be cured before the case proceeds. In
the present case, it was raised when Court had concluded hearing the case
during the course of submissions by Counsel. Further it contravenes the
provisions of O. 6 rule 6 of the Civil Procedure Rules in that it was a clear
departure from the original proceedings.”
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