2 1. (a) Whether the plaintiff registered the PANANSUPER trademark fraudulently; and if so (b) Whether the Plaintiff’s action infringed the 2nd and 3rd defendants’ trademark? 2. Whether the 1st and 2nd Defendants infringed the said trademark or passed off the batteries as those of the Plaintiff? 3. What are the remedies available to the parties? The 1st defendant in reply to the plaintiff’s submission belatedly raised a preliminary point of law which I will deal with first before addressing the issues for trial. It was contended that there is no cause action between the plaintiff and the 1st defendant. This objection was based on Order 7 rule 1 (e) of the Civil Procedure Rules which provides that a plaint shall contain facts constituting the cause of action and when it arose and rule 11 (a) of the same Order which provides that a plaint shall be rejected where it does not disclose a cause of action. Reference was also made to the case of Auto Garage Vs Motokov (1971) EA 314 where it was held that there are three essential elements to support a cause of action, namely that; 1. the plaintiff enjoyed a right, 2. the right has been violated, 3. the defendant is liable. It was submitted that to determine whether the 1st defendant is liable this Court must look at the relationship that exists between the defendants and the plaintiff. It was then contended that the 1st defendant was a mere agent of a disclosed principle who is the 2nd defendant and could therefore not be held liable or sued as it is an established principle of law that where the principal is disclosed the agent cannot be sued. To support this point, counsels relied on the general rule stated in the case of Pheneas Agaba vs Swift Freight HCCS No. 1000 of 1999 where Arach – Amoko J (as she then was) stated: “The general rule is that where an agent makes a contract on behalf of his principal, the contract is that of the principal not that of the agent, and prima facie at common law the only person who can sue is the principal and the only person who can be 2