And in Hennessy & Co. —Vs- Veating (a) (1908) 25 R.P.C 361 (a trade mark case) where
Lord MACNAGHTEN said at page 367:
“The eye no doubt is generally the best test, and you will have to come to a
comparison of the marks or labels sooner or later. Generally, but not always, the
comparison is enough.”
Mr. Mugenyi also referred to the case of E. A. Tobacco Co. —Vs- Colonial Tobacco Co.
Ltd [1938] EACA 6. In that case, after the Appellants‟ “Crescent & Star” brand of shag
tobacco had established a considerable reputation amongst the native peasants of the Eastern
and Northern provinces of Uganda, where it is generally know among the illiterate natives as
“Chapa ya Feza” or Silver Brand, the Respondents put up on the same market their “Mpanga
Brand” of shag tobacco which was sold in packets identical in size, colour and shape with the
packets in which the Appellants‟ tobacco was sold. The labels of both brands were affixed to
the packets in the same manner and position and though they were identical in size and
colour. Both brands were sold by retailers to illiterate natives as “Chapa ya Feza”. It was
held:
“That if a manufacturer sells goods in a get up which so dearly resembles that of
another person‟s goods as to enable his own goods to be sold as the goods of that
person, the manufacturer puts an instrument of fraud into the hands of the shop
keeper. The law will not permit a manufacturer to put a shop keeper in such a
position.”
On trade mark, Mr. Mugenyi argued that even though the Defendant has registered the trade
mark Ngarisha, section 13 of the Trade Mark Act immediately disentitles the Defendant from
the Courts protection. The section provides in the relevant part that:
“13. Prohibition of registration of deceptive etc material shall not be lawful to
register as a trade mark or part of a trade mark would, by reason of its being likely to
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