Wakilii

Muse-Af Enterprises Co. Ltd v Bilen General Trading Ltd (HCT-00-CC-MA 142 of 2013)

High Court · [2013] UGCOMMC 62 · 2013 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ex parte application for Anton Piller order arising from civil suit for trademark infringement
Decision
Anton Piller order granted; matter to proceed inter partes within one week of execution

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court granted an ex parte Anton Piller order permitting the applicant to enter the respondent's premises to inspect and inventory goods branded under the trademark 'PAN SUPER'. The court held that the applicant satisfied all three essential pre-conditions: an extremely strong prima facie case of trademark infringement, potential serious damage through loss of revenue and market share, and clear evidence of incriminating materials in the respondent's possession with risk of disposal.

Outcome

Anton Piller order granted; matter to proceed inter partes within one week of execution

Facts

The applicant is the registered owner of the trademark 'PANASUPER' for batteries and accessory products. The applicant filed suit against the respondent for trademark infringement and brought an ex parte application for an Anton Piller order. The applicant alleged that the respondent was selling batteries under the 'PAN SUPER' mark at various locations in Kampala, passing off its products as those of the applicant. The applicant provided evidence showing the respondent's goods bore similar features including colour combinations, artwork, arrangement, packaging and markings. The applicant claimed loss of market share and revenue due to the respondent's activities. Evidence showed the respondent had removed shop details from mini carton packaging to disguise unlawful activities.

Issues

  1. Whether the applicant has an extremely strong prima facie case for trademark infringement.
  2. Whether the damage, potential or actual, to the applicant is very serious.
  3. Whether there is clear evidence that the respondent has incriminating documents or things and a real possibility of their destruction.

Orders

  • The respondent is ordered to permit the applicant in the company of his advocate to enter the respondent's shops/stores and warehouse behind William Street on Kikuubo Lane, Plot No. 38 Shop No. T-11 and the building opposite Plot 50/52 William Street to inspect all goods and items sold and branded under the trademark 'PAN SUPER' batteries and related documents and materials.
  • The applicant shall take an inventory of the alleged right infringing materials found within the premises and remove into the custody of this court some of them which shall constitute evidence of infringement by the respondent at the trial.
  • Upon entry, inspection, taking inventory and removal into custody of some alleged right infringing materials, both parties shall appear before the court for an inter parties hearing not later than one week from the date of execution of this order.
  • Costs of the application shall be in the main cause.

Rules and key headnotes

Trademarks — Anton Piller Orders — Test for Grant
An Anton Piller order may be granted ex parte where three essential pre-conditions are satisfied: there must be an extremely strong prima facie case; the damage, potential or actual, must be very serious to the plaintiff; and there must be clear evidence that the defendant has in its possession incriminating documents or things and that there is a real possibility that it may destroy such material before any application inter-parties can be made.
Trademarks — Infringement — Prima Facie Case
A registered trademark owner demonstrates an extremely strong prima facie case for infringement where the alleged infringer is selling goods under a mark identical or similar to the registered mark, the goods bear similar features including colour combinations, artwork, packaging and markings, and there is no permission or licence to use the mark.
Trademarks — Infringement — Serious Damage — Loss of Revenue
Loss of revenue and market share caused by trademark infringement constitutes serious damage sufficient to satisfy the second pre-condition for grant of an Anton Piller order.
Anton Piller Orders — Nature and Limits — Not a Search Warrant
An Anton Piller order is not a search warrant and does not authorise the plaintiff to enter the defendant's premises against its will, nor does it authorise breaking down doors or slipping in by a back door. It only authorises entry and inspection by the permission of the defendant, and if permission is refused the only remedy is an action for contempt of court.
Anton Piller Orders — Execution — Inventory and Removal
Where alleged infringing materials may be too numerous to be accommodated within court premises, the court may order the taking of an inventory and removal into custody of only some materials to constitute evidence, with the applicant at liberty to seek a temporary injunction to restrain dealing with the remaining materials.

Legislation cited (8)

Cases cited (2)

  • Anton Pillar KG v Manufacturing Processes Ltd & Others [1976] 1 All ER 779
  • Uganda Performing Rights Society Ltd v Fred Mukubira (Miscellaneous Application No. 818 of 2003)

Full judgment

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

Muse-Af Enterprises Co. Ltd v Bilen General Trading Ltd (HCT-00-CC-MA 142 of 2013) [2013] UGCommC 62 (12 April 2013)
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.