comes about where the goods resemble or are identical. There has to be a visual examination of
the two marks.
Issues number one and two therefore depend on the question of fact as to whether the trademarks
in issue nearly resemble or are identical or are likely to cause confusion. None of them can be
resolved without an examination of the physical marks. An examination of the mark shows that
they are the same. It is a half moon sign with the middle cross with the word moon written on it
and also a sign in the centre that resembles Z. Secondly, it is pertinent to examine the trademark
that the Respondent intended to register. The question of whether to register a trademark or not is
not initially considered by the Court but by the Registrar of Trademarks. Both parties did not
address the court on the question of fact as to what happened to the objection lodged with
Registrar of Trademarks concerning the application of the Respondent to register a trademark.
The procedure is that the Registrar determines the objection. The notice of objection is attached
as annexure D to the supplementary affidavit in reply dated 9th December 2016. Annexure “D” is
dated 8th September 2016 and is form TM No. 6. In it the Applicant gave notice of objection to
the Registrar of Trademarks following the advertisement of an application by the Respondent to
register a trademark “Purple Moon” advertised in the gazette. The ground of the application is
that the mark applied for is not distinctive. The name of the opponent is in respect of the same
class of goods. The Notice of Objection is also attached as annexure C to the affidavit in reply
dated 30th November 2016. Finally the Applicant‟s application in the affidavit in support of the
application is to restrain sale of blankets or other goods by the Respondent bearing the
Applicants registered mark.
The procedure is that where the owner is registered under part "A" of the Trademarks Act
2010. He or she enjoys exclusive rights to the Trademark. It is averred that the
Defendant/Respondent applied to be registered under Part A and the Applicant objected to the
application. A person who claims to be the owner of the trademark used or proposed to be used
by him or her shall apply under section 7 (1) of the Trademarks Act to the Registrar in the
prescribed form for registration in Part A or B of the Trademarks Act.
An application is published according to section 11 of the Trademarks Act 2010. Thereafter
section 12 of the Trademarks Act, gives any person the right to give notice to the Registrar of
objection to the registration of a mark sought to be registered. The evidence presented to court is
that the Applicant objected to the Respondent‟s application.
The law is quite clear that an objection is decided by the Registrar before the refusal or granting
of the application to register the trademark. Any person aggrieved by a decision of the Registrar
has a right of appeal to the court. Under section 16 where the application for registration of the
trademark in part "A" or part "B" of the register has been accepted and the application has not
been objected to the Registrar shall unless the application has been accepted in error register the
trademark accordingly. In this case an objection has allegedly been made to the registration of
the Respondent and the issue is pending determination if at all. The High Court is an appellate
Decision of Hon. Mr. Justice Christopher Madrama
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