reputation and are known by some distinguishing feature/s. The right that is protected by a
common law cause of action of passing off is the goodwill likely to be injured by the
misrepresentation of the respondent‟s goods as that of the plaintiff. It is therefore essential to
plead the reputation or good will acquired the basic facts of misrepresentation, the fact that goods
were sold as that of the plaintiff or that the public are likely to be deceived into believing that the
respondent‟s goods are that of the plaintiff and damages would ensure. In addition the applicant
has to show that irreparable injury that cannot be atoned for by way of damages would occur.
In this case the plaintiff/applicant pleaded the ingredients of passing off, namely the acquired
reputation. As far as the distinguishing features of its mark are concerned, the plaintiff relied on
the get up of products produced in court. However it must be proved in the application that there
was deception or likely to be deception by sale of products. The applicant referred to a range of
the applicant‟s products and compared similarity with the respondent‟s products. He did not
compare them to the registered trade mark which is the right assigned to the applicant. The
evidence shows that this right was assigned in the year 2009 and not 2001 or 2003. The
applicant‟s case is based on registration and the assignment of a trademark under the Trademarks
Act cap 217 (repealed). The evidence so far adduced shows that the trademark in issue is with
respect to a combination of words. I refrain from establishing whether the words “Nice & Soft”
are similar to the words “Nice & Lovely” or are likely to lead to confusion and hence passing off
without the accompanying trade dress in evidence. Such a finding is on the main matter in
controversy and on the merits and should be left for determination in the main suit. In the
premises I am not satisfied that this is a proper case for the grant of a temporary injunction. The
applicant‟s application falls short of the test for a prima facie or arguable case and is accordingly
dismissed with costs.
Ruling delivered at the Commercial Court in Kampala this 30th day of September 2011
Hon. Mr. Justice Christopher Madrama
In the presence of
Yesse Mugenyi for the applicant,
Bamwite Edward for the Respondent,
Parties not in court,
Ojambo Makoha Court clerk
Hon. Mr. Justice Christopher Madrama