5
It was submitted for the Plaintiff that the 1st Defendant was part of the process that resulted in the
consolidation of the suits to which it was a party with the current case against the 2nd and 3rd
Defendants. No objection to this consolidation was raised at that time. It was contended that the
Plaintiff has led evidence to show why it is proceeding against all the Defendants both separately
and jointly and therefore the objection of the 1st Defendant has no merit and ought to be
dismissed with costs to the Plaintiff.
I have carefully considered the above objection and I do find that this was a surprise turn of
events since the 1st defendant did not raise this in the written statement of defence. It even went
ahead to participate in the proceedings including its managing director giving evidence and the
matter was merely raised as an afterthought in the final submissions. If indeed the 1st defendant
was convinced that it was being wrongly sued it could have pleaded lack of a cause of action and
raised it as a preliminary issue at the commencement of the trial or soon thereafter so as to avoid
surprising the plaintiff in the reply to submissions on the issues canvassed before this court. That
approach would be in line with Order 6 rule 6 of the CPR. In the alternative, the matter could
have been framed as the first issue for determination by this court. For the above reason, I
overrule the objection as being an afterthought and a surprise to the plaintiff and proceed to deal
with the substantive issues.
ISSUE 1(a)
Whether the Plaintiff registered the PANASUPER trademark fraudulently?
The plaintiff submitted that it obtained the trademark from the 3rd defendant and lawfully
registered it in Uganda. The plaintiff’s witness, Mr. Afeworki, testified as to how the plaintiff
obtained and registered the trademark. He stated that during the Canton Trade Fair he met a one
Mr. Shore (who acted for the 2nd and 3rd defendants) with whom they discussed an arrangement
under which the plaintiff would own the PANASUPER trademark in Uganda and an OEM
agreement would be entered into to formalize the relationship between the plaintiff and the 3rd
defendant.
The witness further testified that upon obtaining authorization from the 3rd defendant the plaintiff
filed an application for registration of the PANASUPER trademark on 3rd August 2006 but the
5