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United Republic of Tanzania

TZ019-j

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Kibo Match Group Limited v Mohamed Enterprises (T) Limited, Civil Case No. 6 of 1999, High Court of Tanzania, Commercial Division at Dar es Salaam

Kibo Match Group Limited v Mohamed Enterprises (T) Limited, Civil Case No. 6 of 1999, High Court of Tanzania, Commercial Division at Dar es Salaam

Kalegeya, J

Date of Judgment: January 17, 2000

Facts

The plaintiff brought a civil action, seeking a permanent injunction to restrain the defendant from infringing its registered trade mark "Kangaroo" for match boxes. The plaintiff claims that the defendant has been importing and selling matchboxes with an identical trade mark. The plaintiff estimated the loss resulting from that infringement to be 1,544,498,687/ TZS as of September 30, 1999. Pending a final determination of the case, the plaintiff applied for a temporary injunction to restrain the defendant. The plaintiff contended that by proving that it is the registered proprietor of the "Kangaroo" trade mark and that the defendant sold goods with a similar trade mark, a prima facie case would be established. On the irreparability of the injury, the plaintiff insisted that a continuing breach would escalate the amount of the losses suffered to an unaffordable sum to be paid by the defendant. In terms of a balance of convenience, the stakes were not as high for the defendant if a temporary injunction was granted because it was neither a registered owner nor a licensee of the trade mark. The plaintiff claimed that it would be affected more in terms of loss of revenue and loss of goodwill due to the deception resulting from the infringement.

Holding

Under section 50 of the Trade and Service Marks Act, the registration of a trade mark is prima facie evidence of the validity of its original registration. Where the registration is in the plaintiff’s name and the defendant’s import goods bear an identical trade mark, the plaintiff is more likely to suffer irreparable damages if the injunction is denied.

Decision

A prima facie case was established, and irreparable injury was proven by the plaintiff. The questions surrounding the trade mark’s validity and the plaintiff’s exclusive right over its use were issues to be dealt with in the main hearing by production of relevant evidence. Temporary injunction was granted.