ECJ; Case C-259 La Mer Technology Inc. v Laboratories Goemar SA (2004) ECR 1-1159, (2004) FSR 785,……………..When assessing whether use of a trademark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether the commercial exploitation of the mark is real, particularly whether such use is viewed as warranted in the economic sector concerned to maintain or create a share in the market of the goods or services protected by the mark, the nature of those goods or services, the characteristics of the label and the scale and frequency of the use of the mark: Case C-40/01 Ansul BV v Ajax Brandbeveiling BV (supra), Case C-259 La Mer Technology Inc. v Laboratories Goemar SA (supra)”. Counsel for the applicant submitted that taking into consideration all the circumstances of this case, it was self evident that the use of the mark by the respondent was not genuine. He pointed out that the respondent claimed in paragraph 13 of the affidavit in reply that it was importing unlabelled mobile phones from China and labeling them with TECNO mark for sale to the public. He contended that that could not be said to be bona- fide use of the mark because the respondent did not use the trademark in accordance with its essential function, which is to guarantee the identity of the origin of the goods for which it was registered, in order to create or preserve an outlet for those goods. He referred to the case of Blue Bell, Inc v Farah Mfg. Co., United States Court of Appeals, Fifth Circuit, 1975 508 F.2d 1260, 185 U.S. P.Q.1.; which appeared to be on all fours with this case and court held that the manner in which the trademark was being used could not be said to be valid use in trade. Counsel contended that the respondent’s use of the mark as stated in the affidavit in support was illegal as it was outright plagiarism known as passing off at common law which is not warranted in the economy of this country. He contended that the respondent was doing counterfeit business which was defined by Lord Nicholls of Birkenhead in the case of Regina v Johnstone [2003] 3 All ER 884 at paragraph 1. in the following words:“……Counterfeit goods comprise cheap imitations of authentic article, sold under the trademark of the authentic article, as with imitation of Rolex watches. ……Thus, in the context of music recordings, a counterfeit compact disc is an unlawful copy of, say, a Virgin compact disc sold ostensibly as a Virgin product.…..” Counsel for the respondent contended that the respondent’s action fell under a form of counterfeiting and as such it should not be allowed to profit from its own wrongful acts. He referred to the case of Makula International Ltd v His Emminence Cardinal Nsubuga & Another (1982) HCB 11 where it was held that the court cannot sanction what is illegal and illegality once brought to the attention of court overrides all questions of pleadings, including any admissions thereon. He argued that since the respondent had conceded to an illegal act, it could not and should not expect a court of law to protect a trademark which is used in abuse of intellectual property rights.