serious questions to be tried and which merit judicial investigation and adjudication and that the suit is not frivolous or vexatious. In the case of American Cynamide Co. v Ethicon [1975] 1 ALL E.R. 504, Lord Diplock held that where facts are in dispute in the affidavit evidence, and the rights of the parties remain uncertain until a final verdict is given the courts function at this stage is not to resolve conflicts of evidence based on affidavits but to wait for more detailed argument before the case is finally resolved. All the plaintiff needs to show by his action is that there are serious questions to be tried and that the action is not frivolous or vexatious. In such cases the application for a temporary injunction would be decided on the balance of convenience. As far as the test of a prima facie case is concerned, the plaint of the applicant is for passing off and infringement of trademark. The applicant's pleading is that it has been trading in cosmetics known as Nice & Lovely and has acquired a substantial reputation under the trademark “Nice & Lovely”. The alleged infringement is sale by the respondent of cosmetics in Uganda under the name “Nice & soft” without the licence of the applicant. Under the Trademarks Act 2010 section 1 thereof defines "passing off" to mean "falsely representing one's own product as that of another in an attempt to deceive potential buyers”. Section 35 of the Act further saves the common law tort of "passing off" and further gives the meaning of a passing off action. It provides that: "Nothing in this Act shall be taken to affect the right of action against a person for passing of goods or services as the goods and services of another or the remedies in respect of the right of action." The common law ingredients of a passing off action are exhaustively defined and explained in the case of Reckitt and Colman Products Ltd v Borden Inc and others [1990] 1 All ER 873 where it was held that misrepresentation leading to selling of another man‟s goods as the goods of another is an invasion of proprietary rights and is actionable. In a passing off action the plaintiff has to prove reputation or good will and the law seeks to protect that good will so acquired. In case of a registered trade mark the protection afforded to the trader is in the get –up rather than the good will. However similarity in get up of products may amount to passing off at common law because of confusion or deception to potential customers buying goods sold under a similar getup as the goods of the plaintiff. In cases of infringement the plaintiff needs to prove that the respondents get up is likely to deceive members of the public. On the other hand a common law passing off action requires evidence of actual sale of goods as that of the plaintiff. The trademarks Act or Statute gives the right of exclusive use of the Trade Mark. Passing off is in the goods rather than in the mark. Passing off is a distinct cause of action arising from the sale of goods as that of another person though similarity in get up, may in some cases, also amount to passing off at common law. In a common law action for passing off it must be shown that the goods were sold as that of the plaintiff. On the other hand, infringement of trademark is in the similarity. A trademark is