Bata Limited Canada v Bora Industries Limited, Miscellaneous Commercial Case No. 76 of 2005, High Court of Tanzania, Commercial Division at Dar es Salaam
Bata Limited Canada v Bora Industries Limited, Miscellaneous Commercial Case No. 76 of 2005, High Court of Tanzania, Commercial Division at Dar es Salaam
Massati, J.
Date of Judgment: September 8, 2006
Facts
The applicant, a registered proprietor of the "BATA" trade mark used extensively in Tanzania and around East Africa, sued the respondent for selling similar slippers under the trade mark "BORA." The applicant filed this application for a temporary injunction, alleging that the act amounted to trade mark infringement and passing off. The applicant contended that there was a prima facie case and that the applicant had established the acquisition of goodwill in the business of selling slippers before the respondent had. The applicant claimed that it had promoted "BATA" products for over 60 years and that it had more to lose than the respondent, who simply infringed its trade mark.
Holdings
(i) The loss of goodwill is irreparable, and the balance of convenience lies with an applicant who has goodwill for a trade mark.
(ii) The existence of a prima facie case is determined by whether the applicant has a legal right to protect and warrants the court's intervention, such as when the applicant claims to be the registered owner of a trade mark.
Decision
The application was granted as the applicant had established a prima facie case and had more to lose than the respondent.