Wakilii

Nice House of Plastics v Hamidu Lubega (HCT-00-CC-CS 695 of 2006)

High Court · [2007] UGCOMMC 58 · 2007 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for trademark infringement. Default judgment entered after defendant failed to file defence following substituted service.
Decision
Judgment entered for the plaintiff. Defendant ordered to deliver up infringing goods for destruction and pay damages with interest.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the defendant infringed the plaintiff's registered trade marks 'NICE' and 'NICE TOOTH BRUSH' by importing tooth brushes bearing those marks without consent. A permanent injunction was granted restraining further use, and the infringing goods were ordered delivered up for destruction. General damages of UGX 5,000,000 were awarded for trademark infringement. The passing off claim was dismissed as the goods had not circulated to the public before interception at customs.

Outcome

Judgment entered for the plaintiff. Defendant ordered to deliver up infringing goods for destruction and pay damages with interest.

Facts

The plaintiff, Nice House of Plastics Ltd, is the registered proprietor of the trade marks 'NICE' and 'NICE TOOTH BRUSH' in Uganda, registered on 21 July 2005 for tooth brushes in classes 16 and 21. Officials of the Uganda National Bureau of Standards intercepted a consignment of 25 cartons of tooth brushes at Busia Customs Border point bearing the plaintiff's registered trade marks. The consignment had been imported by the defendant, Hamidu Lubega. The packaging was stunningly similar to that of the plaintiff's product. The plaintiff attempted to serve the defendant at the address in the importation documents but failed. Court ordered substituted service by advertisement in the Monitor Newspaper on 27 December 2006, which elicited no response. Default judgment was entered on 23 February 2007. Testing by UNBS showed the tooth brushes were not genuine and failed quality standards.

Issues

  1. Whether the plaintiff is entitled to a permanent injunction restraining the defendant from using the plaintiff's registered trade marks 'NICE' and 'NICE TOOTH BRUSH'.
  2. Whether the defendant's importation of tooth brushes bearing the plaintiff's trade marks amounts to trademark infringement.
  3. Whether the plaintiff has made out a case of passing off.
  4. Whether the plaintiff is entitled to general damages for trademark infringement.

Orders

  • Permanent injunction granted restraining the defendant from use of the word/mark 'NICE' along with the shape and design of a tooth brush 'NICE TOOTH BRUSH' and the name 'NICE HOUSE OF PLASTICS'.
  • Permanent injunction granted restraining the defendant from continued infringement of the plaintiff's trade marks 'NICE'.
  • The defendant shall deliver up to the plaintiff all infringing tooth brushes and product get-up for destruction under supervision of URA and UNBS officials.
  • General damages of UGX 5,000,000 awarded to the plaintiff for trademark infringement.
  • Interest awarded at court rate from date of judgment until payment in full.
  • Costs of the suit awarded to the plaintiff.

Rules and key headnotes

Trade Marks — Infringement — Test for Infringement
The test for trademark infringement is likelihood of confusion, being the probability that a reasonable consumer in the relevant market will be confused or deceived and believe that the impugned goods come from or are sponsored by the protected user or that the two users are affiliated.
Trade Marks — Infringement — Requirements for Proving Infringement
A trademark infringement plaintiff must show a valid, protectable trademark in which he has rights prior to those of the defendant. Any person who uses the trade mark without the consent of the registered proprietor infringes the trade mark.
Passing Off — Distinction from Trademark Infringement
Passing off is a common law tort which can be used to enforce unregistered trade marks. Where the action is for enforcement of registered trade marks and infringement is established, passing off does not arise as an alternative cause of action.
Passing Off — Elements Required
Five characteristics must be present to create a valid cause of action for passing off: (1) a misrepresentation; (2) made by a trader in the course of trade; (3) to prospective customers or ultimate consumers; (4) which is calculated to injure the business or goodwill of the trader; and (5) which causes actual damage to the business or goodwill or will probably do so.
Trade Marks — Remedies — Injunctive Relief and Damages
A trade mark owner who successfully shows likelihood of confusion is entitled to both injunctive relief and money damages from the infringer.
General Damages — Trademark Infringement — Compensatory Principle
Damages for trademark infringement are intended as compensation for the plaintiff's loss and not as punishment to the defendant. The court will assess damages having regard to the defendant's unsuccessful attempt to import infringing goods and the potential harm to the plaintiff's business.

Legislation cited (1)

  • Civil Procedure Rules O.9 r.8

Cases cited (2)

  • Spalding (AG) & Bros v AW Gamage Ltd & Anor (1915) 32 RPC 273
  • Reckitt & Coleman Ltd v Borden Inc [1990] 1 WLR 491

Full judgment

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

Nice House of Plastics v Hamidu Lubega (HCT-00-CC-CS 695 of 2006) [2007] UGCommC 58 (31 May 2007)
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.