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Richard Maize Millers Limited v Real Food Maize Millers Limited (Trademark Registration 46255 of 2014)

Tribunal · [2021] UGRSB 1 · 2021 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for cancellation of trademark registration
Decision
Trademark registration 46255 expunged from the register

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The tribunal ordered expungement of trademark registration 46255 on two independent grounds: first, the registered proprietor Richard Maize Millers Limited does not exist as a legal entity, rendering the registration defective under section 7(1) of the Trademarks Act 2010; second, the mark nearly resembles the applicant's earlier registered mark for identical goods in class 30, contravening section 25(1). The tribunal rejected the respondent's concurrent use argument, finding no evidence of honest concurrent use or special circumstances. Costs awarded to the applicant.

Outcome

Trademark registration 46255 expunged from the register

Facts

Real Food Maize Millers Limited applied on 22 July 2014 for cancellation of trademark registration 46255, a figurative mark with the word 'RICHARDS' registered from 5 October 2012 in the name of Richard Maize Millers Limited. The applicant owned an earlier registered trademark number 41435 from 26 October 2010. Both marks were registered for identical goods in class 30 of the Nice Classification. The respondent's statutory declaration was filed by Kivumbi Moses on behalf of Richard Millers Limited, a different entity incorporated on 30 January 2011. Richard Maize Millers Limited does not exist on the register. Both marks feature a figurative element depicting the upper body of a man with raised arms. The applicant's mark shows a figure with flexed hands; the respondent's mark shows a figure holding dumbbells, with the word 'RICHARDS' below in blue, both figures in red.

Issues

  1. Whether the Respondent, Richard Maize Millers Limited, exists as a legal entity capable of owning a trademark.
  2. Whether the Respondent's trademark number 46255 resembles the Applicant's earlier registered trademark number 41435.
  3. Whether the Respondent's mark was wrongly registered under section 25(1) of the Trademarks Act 2010.
  4. Whether the Respondent qualifies for concurrent use under section 27 of the Trademarks Act 2010.

Orders

  • Trademark number 46255, a figurative element with words 'RICHARDS' in the name of Richard Maize Millers Limited, be expunged from the register.
  • Costs for this application shall be borne by the Respondent.

Rules and key headnotes

Trademarks — Registration Requirements — Legal Capacity of Proprietor
Under section 7(1) of the Trademarks Act 2010, only a person who claims to be the owner of a trademark may apply for registration, and a person can be an individual or legal person; a trademark registered in the name of a non-existent entity is defective and wrongly remains on the register.
Trademarks — Likelihood of Confusion — Test for Resemblance
In assessing whether marks resemble, the tribunal must consider both their look and sound, the goods to which they are applied, the nature and kind of customer likely to buy those goods, and all surrounding circumstances, judging what is likely to happen if each mark is used in a normal way as a trademark.
Trademarks — Likelihood of Confusion — Overall Impression and Dominant Elements
In analysing the overall impression created by marks in visual, aural and conceptual terms, there is no need for likelihood of confusion to exist in respect of all those terms; differences existing on one level may be neutralised in the overall impression by similarities existing on other levels, and where a mark is dominated by a figurative element, a word element in a subordinate position will not be perceived as neutralising the dominant element.
Trademarks — Relative Grounds for Refusal — Prohibition on Registration of Resembling Marks
Under section 25(1) of the Trademarks Act 2010, a trademark shall not be registered in respect of goods that are identical with or nearly resemble a trademark belonging to a different owner and already on the register in respect of the same goods, the same description of goods, or services associated with those goods.
Trademarks — Rectification of Register — Aggrieved Person
The expression 'aggrieved person' in section 88(1) of the Trademarks Act 2010 has no special or technical meaning and is to be liberally construed; it embraces any person having a real interest in having the register rectified and includes any person who would be, or in respect of whom there is a reasonable possibility of being, appreciably disadvantaged in a legal or practical sense by the register remaining unrectified.
Trademarks — Concurrent Use — Requirements for Honest Concurrent Use
Honest concurrent use under section 27 of the Trademarks Act 2010 arises where the mark in issue was in use prior to the registration of the mark that was entered on the register first; where neither the applicant for concurrent use nor the entity in whose name the later mark is registered was in existence at the time of registration of the earlier mark, the argument for concurrent use is not tenable.

Legislation cited (5)

Cases cited (4)

  • Pianotist Co Ltd (23 RPC 77)
  • Cerveceria Modelo SA de CV v OHIM (Case T-169/02)
  • Matratzen Concord v OHIM (Case T-6/01) [2002] ECR II-4335
  • Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158

Full judgment

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

Richard Maize Millers Limited v Real Food Maize Millers Limited (Trademark Registration 46255 of 2014) 2021 UGRSB 1 (17 November 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.