Wakilii

Guangzhou Tiger head battery group co Ltd v Milly nakanjako & Anor (Civil Suit No. 516 of 2012)

High Court · [2014] UGCOMMC 206 · 2014 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for trademark infringement and passing off; 1st Defendant did not file defence; formal proof hearing
Decision
Judgment entered for the Plaintiff with permanent injunctions, delivery up for destruction of counterfeit goods, general damages, and costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the 1st Defendant's importation of Tiger Head batteries without a license violated the External Trade Act and infringed the Plaintiff's registered trademark rights. The goods imported were counterfeit and not manufactured by the Plaintiff, constituting both trademark infringement and passing off. A permanent injunction was granted restraining further infringement, delivery up for destruction was ordered, and general damages of UGX 10,000,000 awarded along with costs.

Outcome

Judgment entered for the Plaintiff with permanent injunctions, delivery up for destruction of counterfeit goods, general damages, and costs

Facts

The Plaintiff is the registered user in Uganda of Trademark No. 19462 'Tiger Head' for batteries registered since 11 November 2007. The 1st Defendant imported two or more consignments (entry numbers C757 and C761) each containing 1110 cartons of 24 dozens of 'Tiger Head' batteries via Bill of Lading dated 28 September 2012. The Plaintiff established that these batteries were not manufactured by the Plaintiff's factory in Guangzhou, China, and were counterfeit. The goods were held by the 2nd Defendant (Uganda Revenue Authority). The importation violated the External Trade (Restriction of Importation of Tiger Head Brand Primary Batteries) Order, 2004, which prohibited importation without a ministerial license. The 1st Defendant did not file a defence after service of summons.

Issues

  1. Whether the actions of the 1st Defendant amount to an infringement of the Plaintiff's rights as the registered user of the trademark and whether the 1st Defendant has passed off the goods as those of the Plaintiff.
  2. What remedies are available to the parties?

Orders

  • A permanent injunction issue restraining the Defendants, their agents, assigns, representatives, servants or otherwise from importing, manufacturing, selling or offering for sale 'Tiger Head' batteries.
  • A permanent injunction restraining the 1st Defendant from passing off their goods as those of the Plaintiff.
  • An order to the 2nd Defendant for immediate delivery up for destruction of all the 'Tiger Head' batteries in its possession or control.
  • General damages of UGX 10,000,000 awarded to the Plaintiff.
  • Costs of the suit awarded to the Plaintiff.

Rules and key headnotes

Trademark Infringement — Importation of Counterfeit Goods Bearing Registered Mark
Importation of goods bearing a registered trademark not manufactured by the registered user constitutes trademark infringement where the goods are counterfeit and deceptively similar to the genuine products.
Passing Off — Elements and Proof
To establish passing off, a plaintiff must prove (i) goodwill or reputation attached to goods identified by distinctive get-up, (ii) misrepresentation by the defendant leading the public to believe the defendant's goods are the plaintiff's, and (iii) actual or likely damage resulting from that misrepresentation.
External Trade Regulation — Restriction on Importation Without License
Importation of goods restricted by statutory instrument without the required ministerial license constitutes an illegality which the court cannot sanction, and such illegality overrides all questions of pleading once brought to the court's attention.
Remedies for Trademark Infringement — Permanent Injunction
Where a defendant has imitated or adopted the plaintiff's distinctive trademark enabling the defendant's goods to be sold as those of the plaintiff, the court may grant an absolute injunction restraining use of that mark as the defendant has placed an instrument of fraud in the hands of traders.
Remedies for Trademark Infringement — Delivery Up and Destruction
Under section 81(4) of the Trademarks Act 2010, the court may order that all counterfeit goods and materials involved in the infringement be forfeited and disposed of as the court may direct, including delivery up for destruction.

Legislation cited (7)

Cases cited (15)

  • Makula International Ltd v Cardinal Nsubuga (Civil Appeal No. 4 of 1981)
  • Kisugu Quarries Ltd v Administrator General [1999] 1 EA 163
  • Reddaway v Burnham [1896] AC 199
  • Reckitt & Colman v Borden Inc [1990] 1 All ER 873
  • Napro Industries Ltd v Five Star Ltd and Another (HCCS No. 325 of 2004)
  • Perry v Truefit (1842) 6 Beav 66
  • East African Tobacco Company v Colonial Tobacco [1938] 5 EACA 6
  • Brooke Bond Kenya Ltd v Chai Ltd [1971] EA 10
  • Fulgensio Semako v Edirisa Ssebugwawo [1979] HCB 15
  • Nice House of Plastics Ltd v Hamidu Lubega (Civil Suit No. 695 of 2006)
  • Kampala District Land Board and George Mitala v Venansio Babweyana (SCCA No. 2 of 2007)
  • Assist (U) v Italian Asphalt & Haulage and Another (HCCS No. 1291 of 1999)
  • Moses Kizige v Muzakawo Batolewo [1981] HCB
  • URA v Wanume David Kitamirike (Civil Appeal No. 43 of 2010)
  • Jennifer Behinge and Others v School Outfitters (U) Ltd (CACA No. 53 of 1999)

Full judgment

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

Guangzhou Tiger head battery group co Ltd v Milly nakanjako & Anor (Civil Suit No. 516 of 2012) [2014] UGCommC 206 (24 April 2014)
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.