of others. A trademark, therefore, is an indicator of source. It does not tell what the goods or
services are, but where they come from. Trade mark protection is granted to trade dress – the
packaging or overall look and feel of what constitutes a person’s product or services.
At the scheduling conference, it was agreed that the two defendants have been importing a product
called Kanta Hair dye into Uganda since 2000. It is also an agreed fact that the plaintiff is the
registered owner of a product called Kanta.
The issues are:
1.
Whether or not the get-up of the plaintiff’s product and that of the defendants is the same.
2.
Whether the plaintiff’s product has been on the market prior to that of the defendants.
3.
Whether the plaintiff has acquired substantial good will and reputation in its product.
4.
Whether or not the defendants are passing off the product as that of the plaintiff.
5.
Whether the plaintiff is entitled to the remedies sought.
Representations:
Mr. Andrew Bagayi for the plaintiff.
Mr. Siraje Ali for the 1st and 2nd defendants.
As to whether the get-ups of the two products are the same, I have had opportunity to see the
packaging of the plaintiff’s product (hereinafter conveniently referred to as ‘Kanta 1’) and the
impugned product (Kanta 2).
‘Get-up’ can simply be defined as the visual features which
distinguish a trader’s goods, most notably, the packaging of the goods. In cases where trade mark
infringement is alleged, infringement occurs when a suspected infringer uses a mark for goods or
services identical or closely related to those of the plaintiff. 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 the infringer’s goods or services come from,
or are sponsored or endorsed by, the complainant or that the two are affiliated. Infringement thus
is analogous to the tort of fraud. The duty of the Judge in a case such as this is to decide, upon
seeing the goods, whether the plaintiff’s goods so nearly resemble the ones complained of as to be
likely to deceive or cause confusion in the minds of the public.
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