République-Unie de Tanzanie

Akita Electronic Co. L.L.C. v Mire Artan Ismail, Commercial Case No. 19 of 2006, High Court of Tanzania, Commercial Division at Dar es Salaam

Mjasiri, J.

Date of judgment: February 19, 2007

Facts

The plaintiff, Akita Electronic Co. LLC, registered in Dubai, UAE, was dealing in the whole sale, import, and export of electronic goods and home appliances, namely, TVs, VCRs, DVDs, and refrigerators. The company was trading under the registered trade mark "ZEC," which was registered in various countries, including Tanzania. The plaintiff filed a suit against the defendant, a businessman residing in Dar es Salaam, for infringing the plaintiff’s registered trade mark by selling cheap imitations of electronic goods from China. The plaintiff requested a permanent injunction to restrain the defendant from infringing the plaintiff’s registered trade marks or service marks, an account of profits in respect of each and every infringement, and other relief.

Holdings

(i) Section 31 of the Trade and Service Marks Act Chapter 326 [R.E. 2002] gives the registered proprietor of a valid trade or service mark the exclusive right to use a trade or service mark in relation to any goods, including sale, importation, and an offer for sale or importation.

(ii) The burden of proof rests upon the plaintiff, who must demonstrate how the defendant was infringing the plaintiff’s trade mark by producing samples and a description of the defendant’s product to enable the court to determine whether the defendant was selling products of a different model, type, and quality under the trade mark of the plaintiff.

Decision

It is undisputed that the plaintiff was the registered proprietor of the trade mark "ZEC" but no evidence demonstrated how the defendant had infringed the plaintiff’s trade mark. No samples or descriptions of the defendant’s products were produced in court in order to determine whether the defendant was selling products of a different model, type, and quality under the trade mark "ZEC."