reputation on the market of its product. It (the plaintiff) has demonstrated a misrepresentation by
the defendants, to the public, in the sense that the defendants’ product has also been on the market
selling along side that of the plaintiff. It has also demonstrated actual damage to its business
occasioned by the defendants’ product.
I have already noted that the name, colour and get-up of the impugned product must have been
intended to confuse unsuspecting consumers of the genuine Kanta. Inside the small bottle packs
containing the bottle with the hair dye, there is a pamphlet with directions on how to use the
product. The pamphlet in Kanta 1 packs bears the plaintiff’s name and address in English and
other languages. Without shame, the defendants copied everything! I do not hesitate to declare it
a clear case of intellectual piracy and dishonesty. It is unfortunate that the exporters’ identity has
not been ascertained.
When all is said and done, Court is satisfied that the defendants are passing off their product as
that of the plaintiff.
I so find.
As to whether the plaintiff is entitled to the reliefs sought, it is submitted that it has suffered losses
on account of a decline in its sales attributable to the mischief of the defendants, and has had to
even shut down its factory for extended periods. PW4 Shah said his company stopped importing
the product when the counterfeit over shadowed the genuine product. I accept that evidence. The
plaintiff’s head prayer is for a permanent injunction restraining the two defendants from use,
further and continued use of the words/mark ‘KANTA’ along with shape and design of its black
hair dye. It also seeks an order restraining them from the continued infringement of the trade
mark; an order that they deliver up to the plaintiff all the infringing hair dyes and other materials
relating to their trade mark and its product get-up, presumably for destruction. Form the evidence,
after the suit was filed and while it was pending hearing, the defendants also registered a similar
trademark. I agree with the plaintiff that this registration was in bad faith given that the defendants
knew that the plaintiff was already the registered owner thereof and the mark was subject of Court
proceedings. It is in my view further evidence of dishonesty on their part.
Court is satisfied that the defendants’ product does not show the date of manufacture or expiry. It
is an obvious danger to the unsuspecting consumer. A trade mark owner who successfully shows
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