likelihood of confusion, has in my opinion, a right of action in damages or for an account, and for
an injunction to restrain the defendant for the future. In view of my findings above, the plaintiff is
entitled to the reliefs stated above, the subject matter of prayers (a), (b) and (c) in the plaint.
I
grant them.
The infringing Kanta hair dye (Kanta 2) and product get-up in which the defendants’ Kanta is
packed shall be delivered up to the plaintiff for destruction under the supervision of the officials of
URA and UNBS, 3rd and 4th defendants herein.
The plaintiff also prays for general damages for the defendants’ infringement of its trade mark and
passing off, and the costs of the suit. I would agree with the submission of counsel for the
defendants that the dilatory conduct of the plaintiff disentitles it to an order for an account.
As regards general damages for passing off and infringement, counsel for the plaintiff has not
suggested to me any figure he would consider to be appropriate for the defendants’ infringement of
its trade mark. This Court is of course cutely aware that damages are intended as compensation for
the plaintiff’s loss and not as punishment to the defendant. In Nice House of Plastics Ltd –VsHamidu Lubega HCCS No. 0695 of 2006 (unreported), Court found no evidence of passing off.
The plaintiff was awarded a sum of Shs.5, 000,000= in damages for the trade mark infringement.
In the instant case, bearing in mind the plaintiff’s disallowed prayer for an order of account; the
fact that the defendants are importers and perhaps not manufactures of the impugned product; the
proved loss suffered by the plaintiff; and doing the best I can in the circumstances of this case, I
consider a sum of Shs.6, 000,000= (six million only) adequate compensation to the plaintiff for the
wrongful acts of the 2 defendants. The amount is awarded to the plaintiff.
As regards the trade mark obtained by the 2nd defendants during the pendancy of the suit, Section
14 (1) of the Trade Marks Act (Cap. 217), prohibits registration of identical or resembling
trademarks. In view of that prohibition, Court takes liberty to invoke its inherent powers under S.
98 of the Civil Procedure Act, to cancel it. It is therefore cancelled.
The monetary award to the plaintiff shall attract interest at a commercial rate of 25% per annum
from the date of judgment till payment in full.
In keeping with the principle that costs follow the event, the plaintiff shall have the costs of the
suit.
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