It’s important to note that when considering a mark, one has to also appreciate the fact
that an average consumer perceives a mark as a whole and does not proceed to analyze
its various details. This position was emphasized in the case Nairobi Java House Ltd v
Mandela Auto Spares Ltd HCCA 13 of 2015.
The opponent insists that the words POKEMON and POKEMON as used by the applicant
are arranged and presented in the same manner and order of arrangement thus making
them identical. Section 25 (2) prohibits registration of such a mark as it is likely to cause
confusion.
The applicant in their submissions state that the opponent did not adduce evidence of
consumers, franchise or agents in Uganda as to prove confusion. I take note that there is
evidence to the numbers and global recognition of the opponent and being a member of
Paris Convention, which Uganda is party, gives the opponent capacity to register the
trademark in Uganda.
Representation of Marks
POKEMON
POKEMON
Applicants mark
Opponents Mark
Name only
Name & Logo
In line with the nature of the trademark the applicant intends to register; the question is
would it cause confusion among customers? I am persuaded to believe so; the only
difference in the marks is the use of letter (E) by the applicant as presented by the
opponent. Visually the marks resemble and are identical, the whole mark is presented
horizontally and in the same format save for the applicants and opponents mark both
being in capital letters and the opponents logo having the letter E with an apostrophe.
Placed side by side the marks are the same.
In the case of Wagamama ltd v City Center Restaurants PLC, [1995] FSR (Ch. D) the
test for likelihood of confusion was essentially practical in the sense that the court would
not consider just what the marks looked like but also what they sounded like.
This
principle was brought out in In the case of Standard Signs Uganda Ltd v Fred Leo
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