of confusion of members of the public. Mohideen relied on the opinion of one customer Mr.
Senyondwa whose affidavit he attached. Secondly he relied on a newspaper article written by
one Rita. There is no evidence that Rita interviewed anybody and her comments were her own
opinion. The concept of an average consumer must import representativeness of the opinion or
likelihood of confusion. There is no evidence of the kind of clientele the Respondent has and
who is a reasonable customer. The registrar erred to rely on the evidence of Mohammad
Mohideen after finding that there was no evidence of reference to the restaurants of the
respondent as Javas by an average or reasonable customer.
Furthermore the trademarks of parties are visually very different. In case of association of the
word Java through use or association to acquire distinctiveness the appellant has been using the
mark in Kenya since 1999 and the court is obliged to take this into account. In any case my
finding on the evidence is that the two marks are dissimilar and the likelihood of confusion is not
supported by evidence and therefore the conclusion of the Registrar is not supported.
In the premises grounds 1, 5, 6, 7 and 8 of the Notice of motion are allowed. The two marks are
capable of concurrent usage and the Appellant‘s appeal succeeds with costs.
The decision of the Registrar dated 21st May 2015 is set aside.
A consequential order issue compelling the registrar to allow registration of the Appellants
application No. 48062/2013 and Trademark Application No. 48063/2013 subject to conditions of
disclaimer under section 26 of the Trademarks Act 2010.
Judgment delivered in open court on the 9th of February 2016
Christopher Madrama Izama
Judge
Judgment delivered in the presence of:
James Mukasa Sebugenyi Counsel for the Appellant
Alex Rezida and Richard Bwayo appear for the Respondent