protection with the knowledge of the manufacturer‟s existence and without the consent of the
manufacturer. Thirdly, that the Applicant is not a lawful authorised agent of the manufacturer.
There is no explicit mention of the trademark in question. However implicit is the suggestion that
the two parties were dealing in the same goods. In a further supplementary affidavit in reply
dated 9th December, 2016 he deposed and attached letters of appointment. The letter of
appointment deal with authority to deal in the "Purple Moon" blankets. Secondly, the
Respondent attached certificate of incorporation of the Respondent indicating that it was
incorporated on 25th September, 2008. Again the Respondent attached a letter from JIANSGU
Ouman Textile Technology Ltd which indicates that it is the manufacturer of Purple Moon
Blankets and they sell Blankets to the Respondent and they partnered with the Respondent since
April 2016.
A careful analysis of the controversy clearly indicates that it is about blankets known as "Purple
Moon" among other matters.
The Applicant‟s application is clearly about its registered trademark. The Respondent's defence
inter alia is that it had prior use continuously of the trademark. The issue of whether the
trademark in question is the trademark is obscured by reference to section 41 of the Trademarks
Act 2010. As we have noted above, section 36 (1) of the Trademarks Act 2010 confers upon the
registered owner of the trademark exclusive right of use subject to sections 24 and 41 of the
Trademarks Act.
“41. Saving of vested rights.
Nothing in this Act shall entitle the owner or a registered user of a registered trademark to
interfere with or restrain the use by a person of a trademark identical with or nearly
resembling it in relation to goods or services in relation to which that person or a
predecessor in title has continuously used that trademark from a date before—
(a) the use of the trademark in relation to those goods or services by the owner or a
predecessor in title; or
(b) the registration of the trademark in respect of those goods or services in the name of
the owner or a predecessor in title, whichever is the earlier or to object on the use being
proved to that person being put on the register for that identical or nearly resembling
trademark in respect of those goods or services under section 27.”
Section 41 of the Trademarks Act obviously deals with trademarks which nearly resemble or are
identical. The averment of the Respondent that the trademarks are not identical puts it out of the
purview of section 41 of the Trademarks Act 2010. At the same time, the Respondent asserts that
it is the same goods or dealing with resembling marks. The question of continuous usage only
Decision of Hon. Mr. Justice Christopher Madrama
Izama *^*~ *&*$$$# xtra+ maximum735securityx 2017 style
15