honest enough. In that case it was conceded that even if the respondents were told to render an
account of their profits they would not be able to do so.
Counsel contented that it is impossible to be certain whether the respondent will render a true
and correct account and more so because their products do not disclose who is manufacturing the
products as this is written in very small letters. Counsel further argued that in cases of
intellectual property violations it may not be easy to assess the level of loss and thus determine
whether damages would suffice.
Learned counsel submitted that the 3rd and final test is that of the balance of convenience. It is
the contention of the applicant that they have been trading in their products since 2001. They are
proprietors of the trade mark “Nice & Lovely”. The respondent has no trade mark at all. It is very
clear that the applicant is being inconvenienced when you look at the similarities of the products
in that their get up is so similar.
The applicant is being compelled to compete against his own products because their products are
almost the same. Counsel referred to the case of Napro where it was the court found that the
balance of probability favoured the applicant who stands to suffer more if the injunction is
refused than what the respondent will suffer if it is granted. Finally he submitted that the
applicant will definitely suffer more than the respondent if this injunction is not granted and
prayed that I grant the application.
In reply learned counsel Bamwite relied on the affidavit in reply sworn by Eddy Freddie Kasajja
on 5th July 2011 opposing the application. As far as his objections to the application on the
ground of the place of commissioning the affidavit in support and the alleged contradictory dates
as to when the applicant commenced doing business in its products this is a preliminary point of
law which I will consider below.
Learned counsel submitted further to his objections referred to above that the applicant‟s
application does not satisfy the conditions for the grant of a temporary injunction. He agreed
with the decision in Napro Industries vs. Five Star about the grounds for granting an injunction.
As far as the question of whether the applicant has raised triable issues is concerned, learned
counsel submitted that probability of success must be disclosed. He contended that there may be
triable issues but when there are no chances of succeeding in the main suit by the applicant.
Learned counsel for the respondent argued that the applicant‟s complaint is that its trade mark
was infringed. The trademark is “A” to the application. The affidavit in reply sworn by Kasaijja
paragraph 7 thereof it is averred that the respondent applied to register its trademark “Nice &
Soft” and it is due for consideration by the Registrar of Trade Marks. He referred to the
advertisement in the gazette annexure B” and refers to the trade mark annexure “A”. The trade
mark registered was “Britannia Nice & Lovely”.