provides that:
“4. - No person shall be entitled to institute any proceedings to prevent, or to recover
damages for, the infringement of an unregistered trade mark, but nothing in this Act,
shall be deemed to affect the rights of action against any person for passing off goods
as the goods of another person or the remedies in respect of those rights of action.”
Mr. Mugenyi also relied on a number of authorities on passing off, including Keerly‟s Law of
Trade Mark of Edn. At page 263. Where it is stated thus:
“The principle of/aw may be very plainly stated, that nobody has any right to
represent his goods as the goods of somebody else. How far the use of particular
words, signs, or pictures, does or does not come up to the proposition enunciated in
each particular case must always be a question of evidence, and the more simple the
phraseology, the more like it is to a mere description of the article sold, the greater
becomes the difficulty of proof; but if the proof establishes the fact, the legal
consequence appears to follow”
He also cited a number of E. African cases where this principle has been followed namely:
1. PJ. Products Ltd —Vs- Haria Industries [1970] EA 40. In that case, the Plaintiff sued
the Defendant for an injunction and damages for passing off, alleging that the packet in which
the Defendant was marketing its baking powder deceived purchasers into thinking that it was
the baking powder of the Plaintiff. The packets were similar in colour and both had the figure
of a chef on them. There was evidence of selling of the Defendant‟s products when the
Plaintiff‟s product was asked for. It was held:
“i.
the get up of the Defendants packet was similar to that of the Plaintiff‟s.
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