Title: Jivanji v Sanyo Electrical Company Limited
Venue: Court of Appeal at Nairobi
Case ID: (Civil Appeal No. 225 of 2001)
Authoring Judges: Omolo, Owuor & Waki JJA
Date of Decision: June 27, 2003
Applicant(s): Jivanji agencies
Respondent(s): Sanyo Electrical Company Limited
Keywords: Trademark, infringement of trademarks
The respondent was registered under Trademarks Act as the owner of the trademark ‘Sanyo’. It was operating in Kenya through its local registered subsidiary Sanyo-Armco Ltd. Sanyo Armco found the Appellant conducting business under Trademark ‘ Sanyo’. The goods traded by the Appellant were of inferior quality and were not manufactured by Sanyo. The respondent filed a suit pleading the damage already suffered and continuing to be suffered as a result of reduced sales of its items. The trial judge entered judgment for the Respondent ordering appellants to deliver up all equipment trademarked and issuing an injunction restraining the appellants from conduction business on the same goods.
1. Is the Plaintiff entitled to general and special damages under in Trademark cases?
2. Whether Sanyo-Armco was indeed a subsidiary and agent of Sanyo, permitted to trade in goods with the ‘Sanyo’ Trademark and hence a proper party in the suit.
There was no denial in the holding that sanyo-armco as a subsidiary and agent of Sanyo was a manufacturer and distributor of goods. It was therefore deemed admitted. Further the plaintiff was entitled to general and special damages as is the case with Trademarks and Patent cases.
1. African highland prouce Ltd v Kisorio (2001) 1 EALR 1
2. Selle v Associated Motor Boat Co. Ltd (1968) EA 123
3. Coast Bus services Ltd v Sisio Mununga Ndangi & 2 others Court of Appeal 192 of 1992
4. Brook Bond Kenya Ltd v Cheni Ltd ( 1971) EA 10
5. Bashir Ahmed Butt v Uwais Ahmed Khan (1982-88) 1 KAR 1
1. On June 27, 2003 judgment was delivered. Sanyo Electrical Ltd(‘Sanyo or Respondent’) is registered under the Trademarks Act as the owner of the Trademark ‘Sanyo’ and conducting business through its local registered subsidiary and agent, Sanyo-Armco Ltd,In July 1998, Sanyo-Armco found one Gulthamed Mohamed Jivanji t/a (‘Jivanji or Appellant) selling machines under the trademark Sanyo. They were of inferior quality and definitely not manufactured by Sanyo. Mr. Jivanji was arrested and charged to his own plea of guilty to the offence of selling goods with falsely applied Trademarks.
2. Sanyo further filed a civil case to the superior Court pleading damages already suffered and continuing to be suffered as a result of reduced sales on the machines. They sought an injunction to prevent the defendants from dealing in any way with any goods bearing the Plaintiffs Trademark and a delivery up to the Plaintiff of all such goods as well as damages and costs arising hitherto.
3. On filing a memorandum of appearance, Mr. Jivanji did not file a defense. The suit was instead set down for formal proof. Khamoni J found for the Plaintiff and awarded Kshs. 10,865,480. Jivanji sought to challenge the judgment hence the present appeal.
The judges found that Order 6 rule 9(1) of the civil procedure rules is clear on the fact that where there is no denial in a pleading it is deemed admitted. Hence Sanyo-Armco is indeed a registered subsidiary and Agent of Sanyo.
4. One the question of damages the Judges found that they could not interfere with the Trial Judges award of damages. Relying on Bashir Ahmed Butt v Uwais Ahmed Khan(1982-88) 1 KAR 1, they stated that An Appellate court also will not disturb an award of damages unless it is mandatory high or low as to represent an entirely erroneous estimate. Therefore it must be shown that the Judge used wrong principles or that he misapprehended the evidence as to arrive at an inordinately high or low estimate.
5. The Court also found that the only witness for the Plaintiffs case was not seriously challenged in cross-examination. The evidence presented to support the Plaintiffs case was sufficient enough to warrant to the said amount of damages. The appeal was dismissed with ¾ of the costs payable by the Appellants.