جمهورية تنزانيا المتحدة

Sabuni Detergents Ltd. and another v Haroon Daud Abdulla and others, Commercial Case No. 46 of 2006, High Court of Tanzania, Commercial Division at Dar es Salaam

Mjasiri, J.

Date of Judgment: January 22, 2007

Facts

The plaintiffs filed this lawsuit, alleging trademark infringement and passing off of their products. The plaintiffs sought injunctive relief, general and specific damages, and a court order for delivery and destruction of the offending products. The defendants raised two preliminary objections: (1) the court does not have territorial jurisdiction to hear the suit regarding the third defendant, Turkey Company Limited, a LTD incorporated in Zanzibar, and (2) the suit is barred by res judicata after the parties settled the case in Commercial Case No. 100 of 2003. The first and third plaintiffs were not parties to the aforementioned commercial case. In Commercial Case No. 100 of 2003, the second plaintiff to this case sued the defendant to restrain them from infringing the plaintiff’s registered trade mark no. 22645 ("GIV SOAPS"). On May 14, 2004, the parties entered into a settlement agreement to cease the manufacture of any soap bearing the trade mark "GIV BEAUTY SOAP."

Holdings

(i) Under section 18 of the Civil Procedure Act, plaintiffs may file suit either where the defendants reside or where a cause of action arises. If the infringement was alleged to have taken place in Dar es Salaam, then this court has territorial jurisdiction.

(ii) Res judicata applies when (a) the identity of the matter at issue is directly and substantially the same that was at issue in a previous suit, (b) between the same parties, (c) under the same title, (d) in a competent court, and (e) heard and finally decided in a former suit. Res judicata bars a claim of such a nature that could have been joined in the first action.

(iii) The trade mark at issue in both cases is the trade mark "GIV BEAUTY SOAP." The second defendant was distributing products manufactured by the third defendant. The claims arose from the same issue of infringement.

(iv) A court settlement agreement has the binding force of res judicata.

Decision

This court has territorial jurisdiction over the case. Although the third defendant was not a party to the prior suit, the second defendant claimed to have been using the trade mark under a royalty agreement entered into with the third defendant, the registered holder of the trade mark. This case is dismissed with costs, per res judicata.