Wakilii

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

High Court · [2017] UGCOMMC 59 · 2017 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for trademark infringement and passing off. Interlocutory judgment entered against defendants for non-appearance after various adjournments. Matter proceeded for formal proof.
Decision
Judgment entered for the plaintiff. Defendants jointly and severally liable for infringement. Permanent injunction issued. Impounded goods to be destroyed or donated to schools under supervision. General damages of UGX 50 million awarded.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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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

Held that the plaintiff, as registered proprietor of Trade Mark Nos. 25799 and 30455 for ABC 'Feathers' Sanitary Pads, has exclusive rights to use the trademarks. The defendants infringed those rights by importing and selling sanitary pads branded 'Featlhers' which were so similar in name, design, packaging, colour and appearance as to be likely to cause confusion. Registration confers exclusive rights under the Trade Marks Act. Permanent injunction granted restraining further infringement. Impounded goods ordered destroyed or donated to schools. General damages of UGX 50 million awarded.

Outcome

Judgment entered for the plaintiff. Defendants jointly and severally liable for infringement. Permanent injunction issued. Impounded goods to be destroyed or donated to schools under supervision. General damages of UGX 50 million awarded.

Facts

The plaintiff, a limited liability company, is the registered owner of Trade Mark No. 25799 (class 5) and Trade Mark No. 30455 (class 16) for ABC 'Feathers' Sanitary Pads, registered since 2003 and renewed in 2010 for 14 years. The plaintiff is the exclusive distributor and has widely advertised the product. On 29 May 2013, the defendants imported 2049 cartons of 'featlhers' sanitary pads through Malaba, cleared at Spedag Interfreight (U) Ltd for sale in Uganda. On 7 June 2013, the consignment was seized by URA and UNBS on suspicion of being counterfeit and for unauthorized use of the UNBS Standard Mark. The plaintiff filed suit on 12 June 2013. The defendants' product was virtually identical to the plaintiff's in design, packaging, colour, size, logo placement and branding, save for minor spelling differences ('featlhers' vs 'feathers' and slight variation in catchphrase). The defendants did not appear to defend the suit. Interlocutory judgment was entered, and the matter proceeded for formal proof.

Issues

  1. Whether the Plaintiff has a right to exclusive use of Trade Mark No. 25799 class 5 and Trade Mark No. 30455 class 16 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, distributing, selling or offering for sale 'featlhers' sanitary pads.
  • An order for the immediate destruction of the impounded goods and the impounding and destruction of any other infringing goods that may have been put on the market by the Defendants without the Plaintiff's knowledge.
  • In the alternative, the impounded goods and any other to be impounded can instead of being destroyed be donated to girls schools where they are highly needed, under the supervision of UNBS, URA and the Plaintiff.
  • A permanent injunction restraining the Defendants 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 are awarded to the Plaintiff.

Rules and key headnotes

Trade Marks — Registration — Exclusive Right to Use
Registration of a trade mark under the Trade Marks Act gives the registered proprietor exclusive right to the use of that trade mark in relation to the goods for which it is registered, provided the registration is valid and subsisting.
Trade Marks — Infringement — Test of Likelihood of Confusion
Infringement of a registered trade mark occurs when a person uses a mark identical with or so nearly resembling the registered mark as to be likely to deceive or cause confusion. The test is whether an average customer acting with reasonable care would be likely to be confused by the article complained of.
Trade Marks — Infringement — Similarity of Marks and Likelihood of Confusion
Where goods are similar visually, conceptually and phonetically, and belong to the same class, the likelihood of confusion does not depend on the sophistication or economic worth of the customer. Minor differences in spelling or wording do not negate infringement if the overall impression is deceptively similar.
Trade Marks — Remedies — Permanent Injunction
Where a plaintiff succeeds in proving infringement of a registered trade mark, a permanent injunction is an appropriate remedy to prevent the defendant from continuing the infringement and to avoid the possibility of the defendant reintroducing the infringing products.
Trade Marks — Remedies — General Damages for Infringement
General damages for trade mark infringement are awarded to compensate the plaintiff for loss suffered, including damage to reputation and goodwill. Damages are calculated to put the plaintiff in the position it would have occupied had the infringement not occurred.
Trade Marks — Account of Profits — Unavailability Without Evidence of Sales
An account of profits is an equitable and discretionary remedy requiring evidence that infringing goods were sold and proof of the defendant's revenues and expenses. Without evidence of sales or profits, the remedy is not available.
Bills of Lading — Consignee Deemed Owner of Goods
The person named as consignee in a bill of lading is deemed to be the owner of the goods listed therein for the purposes of liability in proceedings concerning those goods.

Legislation cited (11)

Cases cited (13)

  • Victoria Secrets Inc. vs. 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 and 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, Cotton L.J.
  • 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)

Full judgment

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Vision Impex Limited v Sansa & Anor (Civil Suit No. 303 of 2013) [2017] UGCommC 59 (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.