The products in the instant case are identical in every possible way. The only difference, quite
insignificant to a casual observer, in my judgment, is that Kanta 2 box pack has no address of the
manufacturer, expiry date or the batch number. The rest is the same. My conclusion is that the
get-up of the defendant’s product is substantially the same as that of the plaintiff’s product. Very
few customers would tell the difference between the two.
The first issue is answered in the affirmative.
As to whether the plaintiff’s product has been on the Uganda market prior to that of the
defendants, the evidence of PW1 Rahul Jham is that production of their Kanta hair dye dates back
to 1947 and that exports to Uganda date back to the sixties. From the evidence of PW4 Kamlesh
Shah, he has been in the country since 1986. He started importing Kanta from the plaintiffs in
1987.
This evidence has not been challenged by the defendants. It is in my view immaterial that Rahul is
a young man in his early thirties. He produced documents to back up his claim. His evidence is
amply corroborated by that of PW4 Shah of Oswald Holdings Ltd. I have seen no reason to doubt
it. I accordingly harbour no doubt in my mind that the plaintiff’s product, Kanta 1, was on the
market before the defendants started bringing in the impugned brand. I so find.
The second issue is also answered in the affirmative.
As to whether the plaintiff’s product has acquired substantial good will and reputation in Uganda, I
have considered the results of the market survey conducted by the plaintiff, P. Exh. 1X. The study
was conducted in Kampala, Arua, Mbale and Mbarara. Targeted respondents were wholesalers
and retailers. The study established a high awareness of Kanta brand. Over 86% of the dealers
interviewed were aware of the plaintiff’s brand.
64% of all the saloons and individuals
interviewed were aware of it. This translated to an awareness of over 77%.
The defendants have not come up with a comparable report. The findings contained in the
plaintiff’s report have therefore not been challenged. Court is satisfied that the plaintiff’s Kanta
hair dye has acquired a substantial good will and reputation on the Ugandan market.
I so find.
3