Wakilii

Vision Impex Limited v Sansa Ambrose & Anor (Civil Suit No. 303 of 2013)

High Court · [2017] UGCOMMC 159 · 2017 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for trade mark infringement and passing off, proceeded by formal proof after defendants' non-appearance
Decision
Judgment entered for the Plaintiff against the Defendants jointly and severally with permanent injunctions, destruction of infringing goods, general damages and costs

Observed later treatment

Cited — treatment unverified cited in 1 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

No adverse treatment recorded Cited 1 time with no adverse treatment recorded; not yet tested on the merits. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The High Court held that the Plaintiff, as registered proprietor of Trade Mark No. 25799, had exclusive right to use the mark for ABC Feathers Sanitary Pads. The Defendants' importation of 2049 cartons of 'Featlhers' sanitary pads constituted trade mark infringement under section 36(2) of the Trade Marks Act, as the spelling, design, colour, and packaging were so similar as to be likely to cause confusion among consumers. Permanent injunctions were granted restraining further infringement and passing off. The infringing goods were ordered impounded and destroyed. General damages of UGX 50,000,000 were awarded, but account of profits was refused for lack of evidence of actual sales.

Outcome

Judgment entered for the Plaintiff against the Defendants jointly and severally with permanent injunctions, destruction of infringing goods, general damages and costs

Facts

The Plaintiff, a limited liability company, is the registered proprietor of Trade Mark No. 25799 for ABC Feathers Sanitary Pads, registered in 2003 and renewed in 2010 for 14 years. In May 2013, the Defendants imported 2049 cartons of sanitary pads branded 'Featlhers' through Malaba, which were being cleared by Spedag Interfreight (U) Limited for sale in Uganda. The Plaintiff was alerted by UNBS and URA seized the consignment on suspicion of counterfeiting and unauthorized use of the UNBS Standard Mark. The Defendants' products were similar to the Plaintiff's in design, colour (light blue), packaging, UNBS logo placement, and the phrase 'special care', with the only differences being the spelling 'Featlhers' versus 'Feathers' and the catch phrase 'special care all the time' versus 'special care for special times'. The Plaintiff claimed its sales fell by UGX 47,000,000 due to market confusion. The Defendants failed to appear and interlocutory judgment was entered. The matter proceeded by formal proof with one witness, Pareku Arut, a director of the Plaintiff Company.

Issues

  1. Whether the Plaintiff has a right to exclusive use of Trade Mark No. 25799 class 5 and Trade Mark No. 30455 in respect of ABC 'Feathers' Sanitary Pads.
  2. Whether the Defendants' importation and sale of 'Featlhers' Sanitary Pads was an infringement of the Plaintiff's Trade Mark.
  3. What remedies are available to the parties.

Orders

  • A permanent injunction is issued against the Defendants, their agents, assignees, representatives, servants or otherwise restraining them from further infringement of the Plaintiff's Trade Mark and from importing, distribution, selling or offering for sale 'featlhers' sanitary pads.
  • An order for the immediate destruction of the impounded goods and the impounding of and destruction of any other of the infringing goods that may have been put on the market by the Defendants.
  • In the alternative, the impounded goods and any other to be impounded can be donated to girls schools under the supervision of UNBS, URA and the Plaintiff.
  • A permanent injunction restraining the Defendant from passing off their goods as those of the Plaintiff.
  • The Plaintiff is awarded general damages of Shs. 50,000,000/-.
  • Costs of the suit awarded to the Plaintiff.

Rules and key headnotes

Trade Marks — Exclusive Right — Registered Proprietor — Trade Marks Act s.36(1)
Registration of a trade mark in Part A of the Register gives the registered proprietor, if valid, the exclusive right to use of the trade mark in relation to the goods for which it is registered.
Trade Marks — Infringement — Test — Likelihood of Confusion
The test for trade mark infringement is whether a reasonable customer acting with reasonable care would be likely to be confused by the article complained of, or whether there is a probability that a reasonable customer in the relevant market will believe the infringer's goods come from or are sponsored by the complainant or that the two are affiliated.
Trade Marks — Infringement — Deceptive Similarity — Phonetic, Visual and Conceptual Similarity
Where the mark on infringing goods is so similar to the registered trade mark that the goods are visually (in colour), conceptually (by design), and phonetically (in sound) similar, and belong to the same class of goods, they are deceptively similar and likely to cause confusion to reasonable users, constituting infringement under section 36(2) of the Trade Marks Act.
Trade Marks — Remedies — Permanent Injunction — Trade Marks Act s.79(1)
Where a person's rights under the Trade Marks Act are being infringed, the court may grant a permanent injunction to prevent continued infringement and prohibit the defendant from offering for sale products bearing the infringing mark or passing off their goods as those of the registered proprietor.
Trade Marks — Remedies — Damages — Measure of Compensation
In a trade mark infringement action, general damages are calculated to put the plaintiff in the position it would have occupied had the infringement not occurred; the measure of damages is the plaintiff's loss, not the defendant's gain, and encompasses direct loss of sales, consequent lost profits, and depreciation of goodwill.
Trade Marks — Remedies — Account of Profits — Burden of Proof — Requirement of Evidence of Sales
An account of profits is an alternative equitable remedy to damages and is granted at the court's discretion; without evidence that infringing goods were sold and proof of revenues earned by the defendant against manufacturing costs, the remedy of account of profits is not available.
Bills of Lading — Consignee — Ownership of Goods
The person named as consignee in a bill of lading is deemed to be the owner of the goods listed therein.

Legislation cited (9)

  • Trade Marks Act s.1(1)
  • Trade Marks Act s.36(1)
  • Trade Marks Act s.36(2)
  • Trade Marks Act s.79(1)
  • Trade Marks Act s.79(3)
  • Trade Marks Act s.79(4)
  • Trade Marks Act s.81(1)
  • Trade Marks Act s.81(4)
  • Civil Procedure Act s.27(1)

Cases cited (13)

  • Victoria Secrets Inc v Edgens Stores Ltd [1994] (3) SA 739 (A)
  • Angelo Fabrics (Bolton) Ltd and Another v Africa Queen Ltd and Another (High Court Civil Suit No. 632 of 2006)
  • Standard Signs (U) Ltd v Standard Signs Ltd & Another (High Court Civil Suit No. 540 of 2006)
  • Ross T. Smith & C. Ltd vs. T.D Bailey Sons & Co. [1940] 3 AU ER 60
  • Scandecar Developments AB vs. Scandecar Marketing AB [2001] UK HL 2L
  • Britania Allied Industries Ltd v Aya Biscuits (High Court Civil Suit No. 24 of 2009)
  • Livingston vs. Rawyands Coale Co. (1880) 5 App. Cas 25, 39
  • Nanoomal/Saardas Motiwalla (U) Ltd vs. Sophy Nantogo
  • Lever vs. Goodwin (1887) 36 CH D. 1, 7
  • Dubirer vs. Cheerio Toys and Games Ltd [1966] EXC2 801
  • Teledyne Industries Inc. vs. Lido Industrial Products Inc (1982) 68 CPR (2d) 204 (F.C.T.D)
  • Spring Gardens vs. Point Blank Limited [1983] IR 88
  • Jennifer Behinge and 2 Others v School Outfitters (U) Ltd (Court of Appeal Civil Appeal No. 53 of 1999)

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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Vision Impex Limited v Sansa Ambrose & Anor (Civil Suit No. 303 of 2013) [2017] UGCommC 159 (6 June 2017)
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.