an extract from the New Vision newspaper (A Uganda Daily) of 27 June 2014 showing
confusion and association of the opponent‘s marks.
As far as the attached affidavit of Senyondwa Andrew Tendo is concerned, he deposes that
sometime in August 2014 and in the village Mall Bugolobi he entered Java coffee & tea thinking
that it was part of the Cafe Javas outlets. That it was the name "Java" that led him to think that
the Java coffee & tea was a branch or sister outlet of the Respondent. On asking one of the
waiters to verify whether the two are related he was informed that Cafe Javas and Java coffee &
tea are two different entities and not related at all. He was disappointed and deposes that the
proposed name of the Appellant was likely to create confusion just like what had happened to
him.
On the other hand the New Vision extract comes under the title "Food Review" reviewed by one
Rita. The article is of 27 June 2014. It purports to associate the Bugolobi restaurant services of
the Applicant with that of the Respondent‘s other branches other than with the Appellant's
branches in Nairobi. I noted that this review came after the affidavit in the counter statement of
the Appellant by Kevin Ashley of 20 April 2014. The dispute was already before the Registrar of
Trademarks by the time the article was written. It is based on an article by one Rita who recounts
her experience and recommends the place. She thought it was one of the outlets of the
Respondent.
I have carefully considered the grounds of the appeal and the submissions of both Counsels as
well as the decision of the Assistant Registrar. The controversy in this appeal relates in the final
analysis to the likelihood of confusion. The gist of the ruling of the Registrar of Trademarks is
that registration of the Appellants trademark would cause a likelihood of confusion.
The
decision did not rest in a substantial way on the registrability of the Appellant‘s Trademark
except in relation to the earlier registration of the Respondent‘s Trademark. I have considered the
submissions on how capability to distinguish is assessed and how likelihood of confusion
according to several judicial precedents relied on. I have also considered submissions based on
the principles for assessing capability to distinguish. For the moment there is no need for me to
consider these precedents and grounds in the appeal as I have to deal with a more basic question
here in below.