I have looked at the first instrument, the confirmatory Assignment dated 14th July, 2004. It is a plain
instrument, with no stamp duty embossment. It cannot in my view be relied on in evidence in light of
section 42 of the Stamps Act, Cap. 342.
The second one of 20/01/2007 is duly embossed with a stamp duty, implying its due execution.
However, it is a document executed after the suit had been registered. For the avoidance of the doubt,
the suit was filed on 16/10/2006 and the document executed on 20/01/2007. Its efficacy is a matter
between the 1st plaintiff as the assignor and Americ Enterprises Ltd as the assignee. The defendants are
strangers to that arrangement.
The evidence of PW2 Mercy Ndyahikayo, an Assistant Registrar,
International Property Rights, Ministry of Justice, is that an assignment is only valid to confer title after
registration with the Registry of Trademarks and that the said document has not been registered with
them.
Another witness, PW6 Nizarali Alibhai, the representative of the 1st plaintiff in East and Central Africa
and the duly appointed representative/attorney of Americ Enterprises Ltd, is that Americ Enterprises Ltd
has no interests and rights in the Trademark until after registration of the same and that the registration is
for him to determine. He has not done so. The defendants adduced no evidence to challenge the
testimony of the two witnesses. I have therefore seen no reason to doubt their evidence. It is evidence
that shows that the document has no relevance to the issues now before the Court. Even if Court were to
accept the defendants’ arguments relating to the 2nd deed of assignment, the parties did agree in that
document that they took cognizance of pending suits for infringement of the Trademarks and passing off
in the High Court of Uganda instituted by the assignor and the registered user. Clause 5.1 thereof refers.
Under clause 5.2, they agreed that all suits for infringement and passing off the Trademarks filed in any
Court in Uganda and pending final determination/resolution ‘shall continue to be conducted by and in
the names of the assignor and the registered user and all proceeds and costs arising as a result thereof
shall be for the benefit or borne by the assignor save where the parties enter into separate agreement to
that effect.
In view of that agreement between the 1st plaintiff and Americ Enterprises Ltd, I do not see how the
defendants’ argument in this regard can be sustained. I would agree with the submission of learned
counsel for the plaintiffs that a right in a trademark is conferred on registration in the Register of
Trademarks of a person as a proprietor thereof. The registration of a person as the proprietor thereof is
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