The second is whether the Applicant shall suffer irreparable loss that
cannot adequately be compensated for by damages.
Thirdly when in doubt the Court shall use the balance of convenience test.
As to serious questions to be tried Mr. Mugenyi has said that there are
questions relating to trade mark infringement pass off by the Respondent.
He has shown products by the Respondent which are similar in name to
those of his client and are package in the same way. This he argues leads
to confusion on the market. He has argued that there are questions of
actual deceptions to be tried.
I have looked at the products presented before Court and prima facie they
can create confusion as to who is the actual manufacturer.
As to the test of damages Mr. Mugenyi says that the loss to his clients is
difficult to assess and indeed this is common in such cases relating to
trade marks. I agree that for such cases of intellectual property violations
it may not be easy to properly assess the level of irreparable loss thus
easily determine whether damages may suffice.
On the balance of convenience Mr. Mugenyi states that his client has been
marketing his product for a long time and is the owner of trade mark.
The Respondent has no trade mark. I further find that though served the