Wakilii

Linyi Huatai Battery Manufacturing Company Limited v Musa AF Enterprises Company Limited (Civil Miscellaneous Application No. 573 of 2020)

High Court · [2021] UGCOMMC 35 · 2021 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for extension of Anton Piller Order issued ex parte, arising from trademark infringement proceedings
Decision
Anton Piller Order extended pending determination of the main suit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court upheld and extended the Anton Piller Order issued ex parte, finding that the Applicant, as registered owner of the PANASUPER trademark, was entitled to protection of its rights. The Respondent's continued use of the trademark without legal clearance prima facie justified interlocutory relief. The Court struck out an affidavit deposed by counsel in personal conduct of the matter as offending professional conduct regulations, but allowed other affidavits in rebuttal.

Outcome

Anton Piller Order extended pending determination of the main suit

Facts

The Applicant and Respondent have been in protracted litigation over the PANASUPER trademark since 2013. In consolidated suits determined in 2015, the High Court declared that the Respondent had fraudulently registered the trademark and ordered its removal from the register. The Respondent appealed and allegedly obtained a stay of execution. Meanwhile, the Applicant registered the PANASUPER trademark in its own name in 2015. The Applicant instituted HCCS No. 900 of 2017 for trademark infringement, which was stayed pending the appeal. In 2020, the Applicant instituted fresh proceedings (HCCS No. 376 of 2020) alleging continued infringement and passing off by the Respondent. The Applicant obtained an Anton Piller Order ex parte in July 2020, which directed seizure of infringing materials and required the Applicant to file an application for inter partes hearing within 15 days. The Applicant filed the present application seeking extension of the Anton Piller Order.

Issues

  1. Whether the supplementary affidavit filed by the Applicant should be struck out for breach of procedure.
  2. Whether the affidavits in rebuttal filed by the Respondent should be allowed on record.
  3. Whether an advocate in personal conduct of a matter may depone to an affidavit in the same contentious matter.
  4. Whether the Anton Piller Order issued ex parte was properly issued, is necessary, and should be extended pending determination of the main suit.

Orders

  • The Anton Piller Order issued vide M.A 425 of 2020 was properly issued, was necessary and is accordingly extended pending determination of HCCS No. 376 of 2020 or any other orders of the court.
  • The costs of this application shall abide the outcome of the main suit.
  • The affidavit in rebuttal deposed by Counsel Oscar Kamusiime is struck out.
  • The other affidavit in rebuttal deposed by Muse Afewerk is allowed on record.

Rules and key headnotes

Civil Procedure — Affidavits — Supplementary Affidavits — Filing After Rejoinder
Where a supplementary affidavit is filed after the rejoinder stage, the court has discretion to allow it on record if justified by the circumstances, and the opposing party may seek leave to file affidavits in rebuttal to cure any potential prejudice.
Civil Procedure — Professional Conduct — Advocate as Witness — Regulation 9 of Advocates (Professional Conduct) Regulations
An advocate in personal conduct of a contentious matter cannot lawfully depone to an affidavit in the same matter. Where an advocate has appeared in personal conduct and argued points of law, he becomes a potential witness and is barred by Regulation 9 of the Advocates (Professional Conduct) Regulations from swearing an affidavit in that matter.
Intellectual Property — Trademarks — Anton Piller Orders — Purpose and Scope
The purpose of an Anton Piller Order is to ensure that offending materials are inspected, seized and brought into court to prevent their disappearance or destruction before the hearing. Such an order, though issued ex parte, is not final and should be evaluated by the court for propriety and necessity after hearing both parties.
Intellectual Property — Trademarks — Registered Ownership — Exclusive Rights — Trademarks Act 2010 s.36
A registered owner of a trademark has exclusive rights to use the trademark in relation to specified goods under Section 36 of the Trademarks Act 2010. The law does not envisage duality of ownership and use of a trademark, and a party cannot claim rights to use a trademark where none exist, even where the trademark is subject of a pending appeal.
Intellectual Property — Trademarks — Anton Piller Orders — Extension Pending Main Suit
Where a party is the registered owner of a trademark and the opposing party continues to use the trademark without legal clearance, the registered owner is prima facie entitled to interlocutory remedies including extension of an Anton Piller Order pending determination of the main suit.
Civil Procedure — Stay of Proceedings — Lis Pendens — Proper Pleading Required
A contention that a suit offends Section 6 of the Civil Procedure Act for being lis pendens or an abuse of process requires proper pleading, evidence, and formal determination. Such a point cannot be decided in an application for extension of an Anton Piller Order where the main suit is not in issue and the opposing party would be denied a fair hearing.

Legislation cited (7)

Cases cited (3)

  • Anton Piller KG v Manufacturing Processes Ltd [1976] 1 All ER 779
  • Uganda Performing Rights Society Ltd v Fred Mukubira (Miscellaneous Application No. 818 of 2003)
  • Uganda Development Bank v Kasirye Byaruhanga & Co. Advocates (Supreme Court Civil Appeal No. 35 of 1994)

Full judgment

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

Linyi Huatai Battery Manufacturing Company Limited v Musa AF Enterprises Company Limited (Civil Miscellaneous Application No. 573 of 2020) [2021] UGCommC 35 (12 August 2021)
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.