George Banham & Co. Ltd [1896] AC pg 199, HL, where he stated that, „nobody has the right to represent his goods as the goods of somebody else‟. Over the past century passing off has developed on case by case basis. Different factual situations has led to the expansion of the law as Lord Oliver observed in Reckitt & Coleman Products Ltd —Vs- Borden Inc [1990] RPC 341, CA, the Jif Lemon‟ case „this is not a branch of the law in which reference to other cases is of any real assistance except analogically.‟ The classic definition of passing off is in the „Jif Lemon‟ case, where Lord Oliver endorsed Lord Diplock‟s definition and reduced to three key elements: goodwill, misrepresentation and damage. He said: “First the Plaintiff must establish a goodwill or reputation attached to the goods or services which supplies in the mind of the purchasing public by which the identifying get-up‟ (whether it consists simply of a brand name or a trade description or the individual features of labeling or packaging,) under which his particular goods or services are offered to the public, such that the get-up is recognized by the public as distinctive specifically of the Plaintiff‟s goods or services. Secondly, he must demonstrate a misrepresentation by the Defendant to the public (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by him are the goods or services of the Plaintiff… Thirdly, he must demonstrate that he suffers or, in a quia timet action, is likely to suffer damage by reason of the erroneous belief engendered by the Defendant‟s misrepresentation that the source of the Defendant‟s goods or services is the same as the same as the source of those offered by the Plaintiff” See also: Intellectual Property Law by Jennifer Davis, Butterworths page 161 -164. I have found some striking similarities in the get up of the two products. There is also no dispute that both the Plaintiff and the Defendant are registered owners of the trademark in question. One is registered in Kenya in 1989 and the other one is registered in Uganda in 2002. Both of them are manufacturing and distributing for sale in the Ugandan 14

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