the question whether the confusion of two people is reasonable to be extended on an average
member of the public, his answer was yes.
I have carefully considered this evidence. Mr Mohammed Mohideen is the Finance Manager of
the Respondent. He has been the Finance Manager of the Respondent for the last 17 years. In his
statutory declaration dated 6th of March 2014 and in paragraph 11 he states that the offending
application if registered will result in the public being confused as to the source of the products
sold under the Applicants Mark. He stated that the marks are so confusingly similar that the
public would be confused or deceived into believing that there is some connection between the
Applicant‘s marks and that of the Respondent. In paragraph 16 he deposed that the Respondent is
already registered and the Applicant‘s application of the trademark is likely to deceive or cause
confusion with that of the Respondent. In the affidavit in the counter statement of the
Applicant/Appellant Mr Kevin Ashley the Group Chief Executive Officer of the Appellant
denied the likelihood of confusion which he thought was based on the opponent‘s belief. He
contended that the belief was without any basis and there was no visual or phonetic similarity
between the respective logotypes, trade dress and style of the Applicant‘s and the opponent‘s
works/trademarks that would give rise to a likelihood of confusion among customers. He further
contended that there were material differences in detail and design of the Applicant‘s trademark
that provide it with a distinctive character. Furthermore on the basis of advice from his lawyers,
he deposed that the likelihood of confusion in trademarks is not determined by placing the marks
side-by-side but by asking whether having regard to the relevant surrounding circumstances the
two marks as used would be remembered as representing distinct enterprises by persons
possessed of an average memory with its usual imperfections. Mere association in the sense that
one trademark brings the other trademark to mind is not sufficient for purposes of determining a
likelihood of confusion.
In rejoinder the Respondent filed statutory declarations by one Mohammed Mohideen and
another by one Senyondwa Andrew Tendo a customer of the Respondent.
As far as Mohammed Mohideen is concerned, he deposes that the offending application will
further aid the confusion in the public as to the source of the products sold. He attached the
affidavit of Senyondwa Andrew Tendo as aiding confusion of the marks. Secondly he relied on