to on the 7th of June 2011 at Kampala. The deponents contend that the trademark “Nice &
Lovely” had acquired a substantial reputation and the respondent was selling inferior products
under a similar trade dress which would injure or dilute the reputation and business of the
applicant. That the respondent was passing off its products as that of the applicant by using a
similar trade dress or getup. The applicant is an assignee of trade Mark 20189 registered in Part
A class 3 of the repealed Trademarks Act cap 217 in the names of Britania Cosmetics Ltd. The
assignor to the applicant in Britania Allied Industries Ltd. In the affidavit in reply sworn by
Eddie Frederick Kasajja the respondent‟s answer is that the applicant‟s affidavit in support of the
application sworn by Esther Kilonzi is defective and renders applicant‟s application fatally
defective. That is no merit in the application because it does not satisfy conditions for grant of a
temporary injunction. The respondent has applied for registration of the trade mark NICE &
SOFT which application was advertised in the Uganda gazette. That the names “Nice & Soft” the
respondent uses is distinguishable from the applicant‟s trademark. Further that the applicant has
no monopoly in the use of the words “Nice” or “Lovely”. The respondent‟s products are for
distribution in Sudan. The products have also been approved by Uganda National Bureau of
Standards for sale in Uganda. Last but not least the deponent avers that the applicant seeks an
injunction in the same suit and a temporary injunction should be denied at this stage.
At the hearing the parties were represented by learned counsel Yesse Mugenyi for the applicant
and learned counsel Bamwite for the respondent.
Learned counsel for the applicant Yesse Mugenyi, submitted that the application is lodged under
the provisions of order 41 rules 1 and 2 to restrain the respondents from manufacturing, selling
or exposing for sale or dealing in any way in the cosmetics with the words “Nice & Soft” and for
costs.
Counsel summarised the facts in the affidavit of Esther Kilonzo and the supplementary affidavit
of Charles Njenga as well as grounds in the chamber summons. The applicant‟s case is that the
respondents without any form of authority from the applicant started selling cosmetics in Uganda
with a similar trademark “Nice & Soft”. Court was referred to several exhibits for purposes of
comparison of the products of the applicant with that of the respondent. Annexure inter alia is a
variety of the product range of the applicant. They show that the product range of the applicant
has the logo “Nice & Lovely”. The ones of the respondent are marked “Nice & Soft”.
Learned counsel submitted that the applicant‟s case is that the colouring and the whole get up of
the product referred to in the application is almost the same. Samples of the products were
availed to the court for examination and comparison. The applicants case is that the comparison
would demonstrate that the colours of the applicant‟s and respondents products are the same and
almost the whole get up or trade dress are the same. Court was referred to the “body milk lotion”,
perfumed baby jelly, baby jelly, baby powder, and other products which I do not need to go into
details thereof to support the submission that they were the similar and likely to deceive potential
customers.