Justice Musa Ssekaana, the head of the High Court Civil Division dismissed the case filed by A-Plus Funeral Management Limited against competitor A-Class Funeral Service Uganda Limited and the company registration body the Uganda Registration Service Bureau(URSB).
In their suit, A-Plus claims that A-Class Funeral Services was illegally registered and was seeking for a permanent injunction against the use of the name “A-Class Funeral Services (U) Ltd ”.
Court documents seen by theGrapevine indicate that A-Plus told court that it was incorporated in 2003 and has since been conducting the business under the name and fashion of A-Plus Funeral Management Ltd.
The plaintiff added that for the last 17 years, it has been in the funeral business and has acquired goodwill in its business throguh its business names as A-Plus Funeral Services Management Ltd because its services and business are well known to the public generally by the said name.
Court documents further indicate that in September 2020, the plaintiff came to know that another company, A-Class Funeral Services (U) Ltd was incorporated by URSB under a business name that is confusingly similar to its name of A-Plus Funeral Management Ltd.
The plaintiff raised objections to the registration of A-Class but they got no positive response.
The plaintiff contended that the A-Class Funeral Services (U) Ltd is a wrongful attempt to pass off their business name and thus mislead the public into the belief that they are the same which was not true.
In their defense, A-Class told court that they followed steps on the URSB website on how to register a local company under a reserved name, lodged the required documentation, paid the required fees and were duly issued a certificate of incorporation in the names of A-Class Funeral Services (U) Ltd.
A-Class contends that they conduct business under the name of fashion A-Class Funeral Services (U) Ltd and have never carried on any trade or business under a “business name” that is allegedly confusingly similar to the name of the plaintiff.
They insist that the names A-Class Funeral Services (U) Ltd and A-Plus Funeral Management Ltd when considered holistically are conceptually dissimilar and are not sufficient enough to give rise to a likelihood of confusion or even passing off.
They added that to get up and public appeal designs of A-Class Funeral Services (U) Ltd are very distinctive within the funeral service industry in Uganda.
In their defense, URSB contended that they registered A-Class in compliance with the law governing registration of companies.
They added that the name A-Class was found to be desirable and hence passed the test for registration of company names.
URSB denied that A-Plus name is confusingly similar to A-Class since the test of ‘confusingly similar’ is applicable if A-Plus had registered a trademark, to which they did not.
URSB stated that as a statutory regulatory body mandated to register and regulate companies, they adhered to the relevant legal test and the claim of negligence on their part is therefore unfounded.
In his ruling, Justice Ssekaana established that A-Class is not confusingly similar to the name of A-Plus and the same does not constitute passing off of the plaintiff’s name.
Justice Ssekaana rubbished the testimony given to court by Drake Edward Wasswa who testified on behalf of A-Plus that while he was attending a funeral at Butambala on 13th September 2020 he saw A-Class company and in his mind he was confused it with A-Plus.
The judge noted that courts would not consider a confused or unobservant mourner like Wasswa but rather a reasonable and intelligent mourner who is conversant with the details of companies engaged in the business of funeral services in Uganda.
He added that A-Plus claim that A-Class name is a pass off of their business name cannot be sustained in the circumstances of the said case.
He explained that passing off is a form of a tort based on common law. He stated that the basis of the cause action lies squarely in misrepresentation, for its underlying rationale is to prevent commercial dishonesty.
Justice Ssekaana added that tort of passing off protects the business of the plaintiff with its many factors and its assets, goodwill and reputation which cannot stop persons gaining a commercial advantage through wrongfully taking the attributes of another’s business if it causes or is likely to cause that other person’s business some damage.
He explained that the two trade names of A-Plus and C-Plus are distinct and A-Plus submissions that have similar phonetic sound have been found baseless.
He stated that It is very true that the reputation and goodwill of the business which is often attached to the trade name will be protected by courts but equity would intervene to provide relief to a plaintiff whose customers had been misled by his competitors.
He stated that even although the Companies Act has provision to ensure that a new company is not registered under a name closely resembling an existing registered company, but is not very effective hence a passing off action may be launched to prevent the registration of a newly proposed company or to change the name of an existing company whose name is confusingly similar to another company with established business and reputation.
By Sengooba Alirabaki
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