Wakilii

Abercombie & Kent Ltd v Abercombie & Kent (U) Ltd & Ors (Civil Suit No. 1035 of 1995) (Civil Suit No. 1035 of 1995)

High Court · [1999] UGHC 12 · 1999 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for passing off and injunctive relief
Decision
Judgment entered for the plaintiff with permanent injunction granted; defendants' counter-claim dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that the plaintiff established a business reputation under the name Abercombie & Kent prior to incorporation and had the right to restrain others from injuring its business by using that name. The court found passing off in favour of the plaintiff, granted a permanent injunction restraining the defendants from using the name Abercombie & Kent or any similar variation, and dismissed the defendants' counter-claim with costs to the plaintiff.

Outcome

Judgment entered for the plaintiff with permanent injunction granted; defendants' counter-claim dismissed

Facts

The plaintiff Abercombie & Kent Ltd was incorporated in Uganda on 15 December 1992. The first defendant Abercombie & Kent (Uganda) Ltd had been incorporated earlier on 30 September 1992. Both companies were registered to carry on tourist business. Before incorporation, the plaintiff conducted business in Uganda through an agent, Captain Collin Stuart of Hot Ice Ltd. Stuart was also one of the promoters of the first defendant. The plaintiff claimed it was unaware of the first defendant's existence at the time of incorporation and that the defendants acted fraudulently to pass off their business as the plaintiff's. The defendants contended that they had reserved the name with the Registrar in April 1991 and that the plaintiff's registration was irregular. The Registrar acknowledged the plaintiff was registered after the first defendant and directed the plaintiff to change its name, but the plaintiff refused. The first defendant never carried on any business after incorporation. The plaintiff has an international tourism business with sister companies in multiple countries and has been actively bringing tourism to Uganda and making investments.

Issues

  1. Whether the plaintiff was carrying on business in Uganda in 1991 to the knowledge of the first defendant or its agents.
  2. Whether there was any passing off and/or trade libel and/or fraud by either the first or third defendant.
  3. Whether the plaintiff is entitled to the remedies claimed.
  4. Whether the plaintiff infringed and/or passed off and/or used the first defendant's name as its own.
  5. Whether the first and third defendants are entitled to the remedies claimed in the counter-claim.

Orders

  • A permanent injunction restraining the first, second and third defendants from carrying on business under any name constituted of the words Abercombie & Kent or any semblance thereto as to be likely to deceive or cause confusion.
  • Costs of the suit awarded to the plaintiff.
  • Counter-claim dismissed with costs to the plaintiff.

Rules and key headnotes

Passing Off — Elements — Business Reputation
A party may restrain another from passing off where it has established a business reputation under a particular name, even if the other party incorporated first, provided the complaining party was using the name in trade prior to incorporation.
Passing Off — Principles of Fair Trading
Trading must not only be honest but must not even unintentionally be unfair; the law recognises that certain limitations upon freedom of action are necessary in the interests of fair trading and all who may wish to buy or sell goods.
Company Names — Priority — Use in Trade versus Registration
Prior use of a business name in trade may give superior rights over a company that registered the same or similar name first but has conducted no actual business under that name.

Cases cited (1)

  • Parker-Knoll Ltd v Knoll International Ltd [1962] RPC 265

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Abercombie & Kent Ltd v Abercombie & Kent (U) Ltd & Ors (Civil Suit No. 1035 of 1995) (Civil Suit No. 1035 of 1995) [1999] UGHC 12 (30 November 1999)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.