Kiwi European Holdings BV v Sajad Ali Limited, Commercial Case No. 26 of 2001, High Court of Tanzania, Commercial Division at Dar es Salaam
Kiwi European Holdings BV v Sajad Ali Limited, Commercial Case No. 26 of 2001, High Court of Tanzania, Commercial Division at Dar es Salaam Nsekela, J.
Date of Judgment: June 3, 2005
Facts
The plaintiff was the registered owner of the "KIWI" trade mark. One of the plaintiff’s representatives bought a KIWI shoe polish from the defendant's shop that was nearly identical to his "KIWI" product. The plaintiff filed a lawsuit against the defendant for trade mark infringement and passing off.
Holdings
(i) A single act of infringement by the defendant, evidenced by the counterfeit sale of the plaintiff's goods, is sufficient ground for the plaintiff to bring an action against the defendant.
(ii) The cumulative effect of sections 31 and 32(1)(a) of the Trade and Service Marks Act provides that the right to exclusive use upon registration cannot be infringed unless it is proved that the offending mark is either (i) identical with the registered trade mark or (ii) so nearly resembles the registered trade mark as to be likely to deceive or cause confusion in the course of trade in relation to the goods in respect of which the mark is registered.
(iii) The burden of proof is on the party alleging trade mark infringement. The plaintiff must prove a resemblance between the two marks that would cause deception.
(iv) The determination of similarity between the two marks has to be considered from the perspective of an ordinary person.
Decision
The use of the plaintiff's logo, "KIWI," by the defendant was likely to deceive or cause confusion in the market. The plaintiff successfully proved that the defendant infringed its registered trade mark "KIWI."