From the record, the plaintiff did not bother to lead evidence establishing a good will or
reputation of its product. It has not even demonstrated a misrepresentation by the defendant to
the public, in the sense that there is no evidence on record of any circulation of similar impugned
goods to the public prior to the interception of the consignment in question by customs officials.
While the intention of the defendant may indeed have been to pass off his goods as those of the
plaintiff, the incomplete nature of the attempt leads the Court to the view that a case of passing
off has not been sufficiently made out. I so find.
As to whether the plaintiff is entitled to the reliefs sought, the plaintiff has prayed for a
permanent injunction restraining the defendant from use and/or continued use of the word/mark
‘NICE’ along with the shape and design of a tooth brush ‘NICE TOOTH BRUSH’ and the name
of the plaintiff, ‘NICE HOUSE OF PLASTICS’. It has also prayed for a permanent injunction
restraining the defendant from the continued infringement of the plaintiff’s trade marks ‘NICE’
and ‘NICE TOOTH BRUSH’.
The plaintiff further prays for an order that the defendant delivers up to the plaintiff all the
infringing tooth brushes and other material relating to the above mentioned trade marks, and its
product get-up.
From the evidence of PW3 Kobel Linda, an inspector with UNBS, the tooth brushes are not
genuine. They were analysed and they failed the test. In my view, a trade mark owner who
successfully shows likelihood of confusion is entitled to both injunctive relief and money
damages from the infringer. In view of my findings above, the plaintiff is entitled to the above
three reliefs. I grant them. The infringing tooth brushes and product get-up in which the
defendant’s toothbrushes are packed shall be delivered up to the plaintiff for destruction under
the supervision of officials of Uganda Revenue Authority (URA) and Uganda National Bureau
of Standards (UNBS).
The plaintiff also prays for general damages for the defendant’s
infringement of its trade marks and passing off, the costs of the suit and such other remedies as
this Court may deem fit and proper in the circumstances.
I have already disallowed the claim for passing off. As regards general damages, counsel has
not suggested to Court any figure he would consider to be appropriate for the defendant’s
infringement of its trade marks. This Court is of course cutely aware that damages are intended
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