In matters of intellectual property, a trademark is a word, phrase, symbol, product feature or any
combination of these that distinguishes in commerce the goods or services of its owner from those of
others. A trademark, therefore, is an indicator of source. It does not tell what the goods or services are
but where they come from. Trademark protection is granted to trade dress-the packaging or overall look
and feel of what constitutes a person’s product or services.
It is an admitted fact that on 7/10/98 the first plaintiff registered a trademark ‘MEKAKO’ in Uganda.
The said trademark was renewed for further period of 14 years from 10/09/2004. It is further admitted
that the 2nd plaintiff is the sole registered user in Uganda of the trademark Mekako. He is in other
words the only person authorized by the 1st plaintiff to import its products into the country. The
uncontroverted evidence of PW2 Mercy Ndyahikayo is that according to the Trademarks Register, the
plaintiffs are the only registered proprietor and registered user respectively authorized in law to use the
Trademark Mekako. Further that any other person who uses the same without the authorization of the
above mentioned persons would be infringing the trademark.
I have had the advantage of seeing the packaging of the plaintiffs’ product and the defendants’ product.
In my view, the get-ups of the two products are the same, where by get-up I mean the visual features
which distinguish a trader’s goods, most notably, the packaging of the goods. In cases where trademark
infringement is alleged, as herein, the infringement occurs when a suspected infringer uses a mark for
goods or services identical or closely related to those of the plaintiff. The test of infringement is
likelihood of confusion. Likelihood of confusion is the probability that a reasonable consumer in the
relevant market will be confused or deceived, and will believe the infringer’s goods or services come
from, or are sponsored or endorsed by, the complainant or that the two are affiliated.
I said in
Nanoomal Issardas Motiwalla (U) Ltd –Vs- Sophie Nantongo & Others HCT-00-CC-CS-0430-2006
(unreported) and I reiterate that position herein, that infringement is analogous to the tort of fraud. The
duty of the Judge in a case such as this is to decide, upon seeing the goods, whether the plaintiffs goods
nearly resemble the ones complained of as to be likely to deceive or cause confusion in the minds of the
public. Having found that the products in the instant case are identical in every possible way; and in
view of the admitted fact that the defendants have imported into the country a soap product known as
Mekako; and in view of the unchallenged evidence that the importation was done without knowledge
and/or authority of the plaintiffs, I have found no difficulty in determining the fourth issue in the
affirmative. I do so.
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