ii.
the similarity was such as to lead to confusion and to allow deception.
iii.
the Plaintiff was therefore entitled to an injunction and damages. Judgment for the
Plaintiff”
2. Parke Davis & Co. Ltd —Vs- Opa Pharmacy Ltd [1961] EA 556. In that case the
Appellant Company had for twenty eight years sold in East Africa tubes of ointment packed
in distinctive cartons under the registered trade name “Capsolin”. In 1955 the Respondent
Company began selling a similar ointment under the registered name “Capsopa”. In 1959 the
Appellant Company sued claiming an injunction to restrain the Respondent company from
passing off its products on that of the Appellant Company and damages or an account of the
profits made. The trial Judge dismissed the suit finding inter alia that there was no evidence
of confusion among the public despite the concurrent sale of the two products and that
“Capsopa” was not likely to be confused with „Capsolin‟. On appeal, it was held inter alia;
“(i) since the first two syllables in the trade name used by each of the parties were identical
and there were resemblances in the containers there was a teal probability of confusion and
the Appellant Company was „entitled to an injunction.”
Mr. Mugenyi further submitted that in cases of passing off, the Court is vested with the power
to look at the mark to determine the similarities. He relied on the case of Hassanali M.
Sachoo —Vs- Johnhopkin O.V.T [1958] EA 464, particularly a quotation from Kerly‟s
book at page 646 cited in the case of Schweppes Ltd –Vs Gibbens (1905) 22 RPC 113,601
by WARRINGTON, J, whose Judgment was approved by the majority of the Court of Appeal
and by the House of Lords when he said:
“It seems to me that each of these cases must be looked at by itself, and the Judge
looking at the label, or the get up or the device, whatever it may be that is complained
of with much assistance as to the practice of the trade as he can get from witnesses,
must decide for himself whether the article complained of is calculated to deceive or
not.”
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