conclusive evidence of compliance with the procedures as mandated in law unless rebutted by
the Respondent which the Respondent has failed to do. Secondly, learned Counsel submitted that
the allegation by the Respondent that the application omitted to gazette the application for the
registration of the Applicant's trademark is baseless and an afterthought. The said
allegation was never pleaded in the Respondent's statement of Defence and Counter
Claim. The minimum prudence required of the Respondent would at least entail the
submission of a letter from the Uganda Registration Services Bureau (Registrar of
Trademarks) confirming the non-compliance by the Applicant or to seek de-registration of
the Applicant's mark in a separate suit. This burden of proof as mandated under Section
101 of the Evidence Act, Cap. 6 has not been discharged by the Respondent.
It is pertinent to note that there is no evidence of authority extended to the Respondent by
LUOYANG CITY GUANLlNLlDE BLANKET FACTORY. On the contrary, the
authority extended to the Respondent is from BINGLING ENTERPRISES LIMITED &
JIANSGU OUMAN TEXTILE TECHNOLOGY CO. LIMITED (Chinese companies),
which companies are not the Registered Owners of the said trademark in China.
The Respondent's allegation of having dealt in the said goods for 8 years is not disclosed in
the pleading of the Respondent. On the contrary, the Respondent in Paragraph 4 (b) of the
Written Statement of Defence and Paragraphs 5 & 6 of the Supplementary Affidavit in Reply
confirms having dealt in the said goods for different and contradicting time frames. The
date of authorization in the Agency letter from Bingling Enterprises Limited is from 20 th
April, 2012 and that from JIANSGU Ouman Textile Technology Co. Limited is from
April, 2016 which dates are in contradiction with the above allegation. No evidence to
prove the alleged prior use has been adduced by the Respondent. More so given, that the
Respondent has never challenged the Applicant's registration of the said trademark or
applied for de-registration of the same.
The Applicant‟s Counsel submitted that the issue in dispute is not about the similarity of
the marks but the unauthorized usage of the Applicant's trademark by the Respondent
which fact is not rebutted as portrayed in paragraph 4 (c) of the Written statement of Defence
and Paragraph 5 (iii) of the Counter Claim; wherein the Respondent confirms dealing in the
impugned goods and further confirms storing the said goods bearing the Applicant's
Trademark in Paragraph 6 of the Supplementary Affidavit 2.
He further submitted that the Applicant's registration of the said trademark confers
exclusive rights to the Applicant and the Respondent has not adduced any evidence to
justify its unauthorized use of the Applicant's Trademark. The material contradictions in
the evidence of the Respondent draw this Honourable Court to the one conclusion that is
the evidence adduced by the Respondent cannot be relied upon by Court. "He who comes to
equity must come with clean hands" therefore Court must permanently restrain the
Respondent from using the Applicant‟s trademark for the Respondent‟s benefit.
ISSUE 2: Whether the Respondent has Locus Standi to challenge the Applicant's
Registration of the said trademark?
Decision of Hon. Mr. Justice Christopher Madrama
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