The plaintiff’s claim is for a permanent injunction to restrain the defendant from infringing the plaintiff’s registered mark, passing of toothbrushes bearing the mark "Colage Double Action" or any other colourable imitation as toothbrushes of the plaintiff which bear the mark “Colgate Double Action”.
- The infringing mark so nearly resembles with the plaintiff’s mark that it is likely to cause confusion in the course of trade in relation to goods of the same description. Hence, the defendant has infringed the plaintiff’s trademark.
- Where there has been infringement, the plaintiff whose trademark has been infringed is entitled to compensation on the principles of restitutio in integrum.
- The defendant’s act of offering for sale toothbrushes constitutes passing off of the plaintiff’s toothbrushes. Hence, the plaintiff is awarded exemplary damages along with interest at 17% from the date of judgment till payment in ful
The issue in this matter stems from the defendant selling (in their trading stores) toothbrushes bearing a certain mark. The plaintiff claimed that it was the registered owner of that mark. The plaintiff sought a permanent injunction to restrain the defendant from infringing their registered mark and passing off of the plaintiff’s toothbrushes by selling these products in their supermarkets. The plaintiff’s action was not contested by the defendant.
The plaintiff further submitted that the act of offering for sale toothbrushes bearing the mark is a clear case of infringement of the plaintiff’s rights in respect of the trademark.
The court found that the two toothbrushes looked alike in all material respects and where likely to confuse customers of the plaintiff and in terms of section 36 (2) of the Trademarks Act 2010; the defendant infringed the registered owners mark and infringed the plaintiffs right to exclusive use of its trademark.
The act of selling the toothbrushes was found to constitute the action of “passing off”. The plaintiff was awarded exemplary damages.