[2006] KEHC 2347 (KLR)
The court found that the plaintiff had established a prima facie case with a probability of success by demonstrating that the defendant's sugar packaging was similar in get-up, color, and appearance to that of the plaintiff, which was likely to mislead consumers into believing the defendant's product was that of the...
Source-derived case information.
- Citation
- [2006] KEHC 2347 (KLR)
- Parties
- Plaintiff: Mumias Sugar Company Limited; Defendant: Njewaka Supermarket
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 49 of 2006
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- temporary injunction granted in favour of the plaintiff; costs awarded to the plaintiff
- Legal Topics
- Trademark Infringement, Passing Off, Interlocutory Injunctions, Product Packaging, Goodwill Protection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mumias Sugar Company Limited
Plaintiff
Njewaka Supermarket
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the defendant's packaging constitutes passing off or infringement of the plaintiff's registered trademark.
- 2 Whether the plaintiff has established a prima facie case to warrant the grant of a temporary injunction.
- 3 Whether the similarities in packaging are likely to mislead consumers.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case with a probability of success by demonstrating that the defendant's sugar packaging was similar in get-up, color, and appearance to that of the plaintiff, which was likely to mislead consumers into believing the defendant's product was that of the plaintiff. The court accepted the plaintiff's evidence, including the trademark registration and photographic exhibits, and held that the similarities in packaging constituted an attempt to pass off the defendant's sugar as that of the plaintiff. Applying the principles in Giella v Cassman Brown, the court concluded that the plaintiff was entitled to a temporary injunction to...
Court Disposition
temporary injunction granted in favour of the plaintiff; costs awarded to the plaintiff
Orders
- A temporary injunction is issued restraining the defendant, its servants, directors, officers, or agents from packaging, selling, supplying, or contributing sugar under packets similar or confusingly similar in get-up to those of the plaintiff.
- The plaintiff is awarded costs of the chamber summons dated 13th February 2006.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 49 of 2006
MUMIAS SUGAR COMPANY LIMITED……….…….................................………PLAINTIFF
VERSUS
NJEWAKA SUPERMARKET……………….…..................................……………DEFENDANT
R U L I N G
The defendant was served with the plaintiffs application dated 13th February 2006 but did not attend court on day of hearing.
The plaintiff by chamber summons brought under order XXXIX Rule 1 and 2 of the Civil Procedure Rules, Sections 3A and 63 (c) and (e) of the Civil Procedure Act seeks an order of injunction be issued to restrain the defendant from packaging, selling, supplying or contributing sugar under the packets similar and or which is confusingly similar in get up to the sugar processed and packaged by the plaintiff.
The plaintiff arguments are that it is the proprietor of Trade Mark Number 51250 consisting of the words ‘MUMIAS SUGAR’ – NATURAL SWEETNESS Registered in class 30 part A of the Trade Mark Act. The plaintiff exhibited a copy of the Registration certificate.
That the plaintiffs sugar is marketed in a square pack bearing a label comprising the words ‘MUMIAS SUGAR’ and below these words is the words ‘NATURAL SWEETNESS’ in green small letters and on the upper part are green stripes and the lower part has blue stripes. The plaintiff exhibited a photograph of that packet.
The plaintiff further argues that its package of sugar in the country has acquired immense goods will and that its reputation is considerable and is recognised by its get up.
It is averred in the plaintiff’s supporting affidavit that in January 2006, the plaintiff’s agent purchased sugar in the defendant’s super market which sugar had packaging in packs similar to those of the plaintiff. That the defendant is packaging that sugar and offering it for sale. The plaintiff exhibited a photograph of that sugar sold and packaged by the defendants.
Having seen that exhibit I do accept the plaintiff’s contention that the defendant packaged sugar is similar to the packaging pack of the plaintiff so as to be an attempt to pass off the defendant’s sugar product as that manufactured, processed and packaged by the plaintiff. That even the colour of the defendant pack are similar to the plaintiffs. The impression that all these similarities given is that the sugar is the plaintiff’s sugar and is designed so as to pass off the product as that of the plaintiff.
In view of the foregoing I do find that the plaintiff has shown a prima facie case with probability of success and does satisfy the first test of GIELLA – V – CASSMAN BROWN CO. LTD [1972] E.A. 358. The plaintiff is deserving of the order of injunction.
The order of the court is that: -
Ø That a temporary injunction be issued to restrain the defendant whether by itself, its servants, its directors, officers or agents or any of them from packaging selling, supplying or contributing sugar under the packet and or packs that are similar and or which is confusingly similar in get up to the sugar processed and packed by the plaintiff.
Ø That the plaintiff is awarded costs of the chamber summons dated 13th February 2006.
Dated and delivered this 26th May 2006.
MARY KASANGO
JUDGE