of the affidavit of Charles Njenga. He further submitted on the other marks and colours in the get up. According to a book by Nard, Barnes and Madison, The Law of Intellectual Property at page 40 thereof traders package or design their products in such a way that attracts their customer‟s attention and indicates to customers that the product comes from a unique place. The definition of a mark under section 1 of the Trade Marks Act 2010 includes any mark or devise. This may include a combination of words. The definition of a mark is material for its protection under the Trademarks Act 2010. The crux of the applicant‟s complaint in the use of a similar getup by the respondent is that the use of similar marks with trade dress or combinations of colours and designs amounts to passing off at common law or infringement of a trademark already registered. A mark registered under Part A acquires the protection of exclusivity under section 36 of the Trademarks Act 2010. Similarity may be assessed by the judge. In Smith Kline and French laboratories ltd (SKF) vs. Sterling Winthrop Group Ltd [1975] 2 All ER 578 the definition of a trade Mark was considered. Section 68(1) (UK Act has the same wording as our section 1 (1) of the repealed Trade Marks Act cap 217 or section 1 of the Trademarks Act cap 2010 of Uganda. The court noted that the mark had to be distinctive and adapted to distinguish the goods from that of other traders/manufacturers. Per Lord Diplock The colour combinations have thus been shown by undisputed evidence to serve the business purpose of a trade mark. They do precisely what a trade mark is meant to do: they indicate to potential buyers that the goods were made by SKF and not by any other manufacturer. ...„... “My Lords, I see nothing in this context that requires one to exclude from the definition of „trade mark‟ a mark which covers the whole of the visible surface of the goods to which it is applied. Such a mark is as capable of indicating a connection in the course of trade between the goods and the proprietor of the mark as it would have been if it had only covered half or three-quarters of the visible surface. No one has been able to point to any business purpose that would be served by drawing a distinction between marks that cover the whole and those which cover part of the surface. For my part I should be loath to ascribe to Parliament an intention to do anything so irrational. However, a mark may fall within the definition of trade mark but may still not be registrable. So it is necessary to see whether there is anything in the provisions of the 1938 Act dealing with registration that would exclude from registration a mark which covers the whole of the visible surface of the goods to which it is applied. Section 9 states what a trade mark must consist of in order to be registrable in Part A of the register. The colour combinations used on the capsules and their pellets for which registration is sought by SKF come under the heading „any other distinctive mark‟ in s 9(1) (e). I shall