جمهورية تنزانيا المتحدة

GodreJ. Consumer Products Limited v Targent International (T) Limited, Miscellaneous Commercial Application No. 54 of 2019, High Court of Tanzania, Commercial Division at Dar es Salaam

Fikirini, J.

Date of Ruling: July 2, 2020

Facts

The plaintiff sued the defendant for importing counterfeited goods into the Tanzanian market (Commercial Case No. 60 of 2019). Pending that case, the plaintiff filed an application under certificate of urgency for a temporary injunction against the defendant to restrain them from manufacturing, selling, or distributing insect repellent bearing the HIT Trade Mark. The Defendant further contended that the plaintiff had no locus standi to sue because it was neither the registered owner of the word HIT as a trade mark in Tanzania nor had any legally recognizable right which had been infringed upon by the defendant.

Holdings

(i) In an application under certificate of urgency, the applicant must show three things: (a) that there was a prima facie case with probability that the applicant is entitled to the relief claimed; (b) the injunction was necessary to protect the applicant from irreparable harm; (c) that the grant of the injunction would cause the respondent less hardship than withholding the injunction would case the applicant.

(ii) The prima face case of trade mark infringement may be established if upon consideration of the close similarity between the trade marks at issue was, on balance, such as to cause deception or confusion to the customers. This can be met by a showing that the applicant’s products bearing the mark were imported prior to the respondent’s importation of identical products bearing the mark.

(iii) The irreparable harm is prong is met because the goodwill established, confusion, and deception due to the close similarity of the products will harm the applicant financially and reputationally. Reputational harm may not be reversed through money damages.

(iv) If the first two prongs are met, the applicant will likely suffer more than the respondent.

Decision

(i) The plaintiff established a prima facie case of trade mark infringement and the harm to its reputation would be irreparable but for the preliminary injunction. The application for temporary injunction is granted.