under section 19 is an important admission by the Appellant that the Appellant‘s trademarks
contained some, matter that the use of the disclaimed the matter by another party cannot without
other attributes be sufficient to give rise to a likelihood of confusion with the concerned mark.
The only similarity between the Appellant's trademark and the Respondent's trademark is in the
word "Java". Counsel further submitted that Part B only required the mark to be capable of
distinguishing the Appellant services from those of any other persons in the course of business.
When it is considered as a whole the Appellants trademark with the distinctive "Sun" devise is
capable of distinguishing the services of the Appellant.
The Appellants Counsel further submitted on the issue of whether the Assistant Registrar made
an erroneous consideration of the relevant matters in assessing whether there was a likelihood of
confusion. Secondly there was an erroneous reliance on inadmissible evidence by the Assistant
Registrar.
Counsel contended that the Assistant Registrar did not follow the test in Specsavers (supra) and
committed a distinct error of law and principle by taking into account irrelevant matters when
evaluating the possibility of a likelihood of confusion and thereby arrived at a wrong conclusion
that a likelihood of confusion exists. The Assistant Registrar gave evidence filed by the
opposition comprising a restaurant review of the Appellant's enterprise published in the New
Vision on 27 June 2014 and a declaration by one Mr Andrew Senyondwa Tendo. Both in the
newspaper article and the declaration believe that one of the Appellant's establishments was a
branch or sister outlet of one of the Respondent establishments. In the premises the Assistant
Registrar found that the evidence filed was representative of the confusion which a reasonable
member of the public would be expected to have when considering the two competing marks.
The Appellants Counsel further submitted that newspaper articles are inadmissible as hearsay
evidence. He relied on the Supreme Court case of Attorney General versus Major General
David Tinyefuza SCCA number 1 of 1997 per Oder JSC.
Furthermore he submitted that the evidence related to passing off and not a registered trademark
confusion he submitted that the question of whether one word is likely to cause confusion with
another is a matter upon which the judge must make up his mind and which he and he alone has
to decide. He cannot abdicate the decision in that matter to witnesses before him.