The first relief sought herein is 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’.
In matters of intellectual property, a trade mark is a word, phrase, symbol, product feature, or
any combination of these that distinguishes in commerce the goods or services of its owner from
those of others. A trade mark, therefore, is an indicator of source. It does not tell what the
goods or services are, but where they come from. In the instant case, PW1 Sarah Walusimbi, the
Company Secretary of the plaintiff, testified that the plaintiff company owns intellectual
property which includes the registered trademarks ‘NICE’ and ‘NICE TOOTH BRUSH’. That
the aforesaid trade marks were registered in the names of NICE HOUSE OF PLASTICS
LIMITED on 21/7/2005 for tooth brushes and packets of tooth brushes as Nos. 27492 and 27487
and for goods in class 21 and class 16 retrospectively. This evidence has been confirmed by
PW2 Mercy Kyomugasho Kentaro Ndyahikayo, an Advocate, State Attorney and Assistant
Registrar of Trade marks in Uganda. The certificates of registration have been exhibited in
Court. In these circumstances, Court is satisfied that the plaintiff is the owner of the trademarks
‘NICE’ and ‘NICE TOOTH BRUSH’ in Uganda.
As to whether the defendant’s importation of the 25 cartons, the subject matter of this suit,
amounts to an infringement of the plaintiff’s trademarks, a trademark infringement plaintiff must
show a valid, protectable trademark in which he has rights prior to those of the defendant. The
plaintiff herein has through the evidence of PW1 and PW2 shown that the trademarks which are
the subject of this suit have not been the subject of any assignment, registered user or third party
rights. The test of infringement is likelihood of confusion. Likelihood of confusion is the
probability that a reasonable consumer in the relevant market will be confused or deceived, and
will believe that the impugned goods or services come from, or the sponsored or endorsed by the
protected user or that the two users are affiliated. Infringement is thus analogous to the tort of
In the instant case, from the evidence of PW1 Ms Walusimbi, the plaintiff learnt of the existence
of the impugned goods from the officials of the Uganda National Bureau of Standards, UNBS.
These officials intercepted a consignment of 25 cartons of tooth brushes bearing the plaintiff’s
trade marks. There is evidence that the goods were imported into the country by the defendant.
The interception was at Busia Customs Boarder point. There is no evidence of any circulation of
such goods in the country prior to the importation of this particular consignment. I have seen the