Failing to find that there was no material similarity between the Appellants trademarks
and the Respondents trademarks; and
Taking into account irrelevant matters and relying on inadmissible evidence when
assessing whether there was a likelihood of confusion, thereby arriving at the wrong
conclusion that confusion exists.
In the premises the Appellant prays that the appeal is allowed and the court exercises discretion
under section 66 (3) of the Trademarks Act to set aside the decision of the Assistant Registrar
with costs to the Appellant.
In reply the Respondent‘s Counsel opposed the appeal. He submitted that on the 21st of May
2015 the Assistant Registrar delivered a ruling upholding the Respondent‘s objection to the
Appellant's application for registration of its intended trademark. On 4 June 2015 the Appellant
appealed the decision on 9 grounds. In Miscellaneous Application Number 580 of 2015 the
Appellant sought to amend the grounds of appeal and the application was not allowed. However
the Appellant has gone ahead to abandon its grounds of appeal and carry on with the very fear
expressed by the court that it may be introducing new grounds of appeal. Consequently the
Respondent‘s Counsel objected to the grounds submitted on as being a departure from the notice
of motion which contains the grounds of the appeal without the leave of court. He contends that
the submissions of the Appellant's Counsel do not fall under the grounds of the notice of motion
giving the grounds of appeal. He contends that the notice of motion is concerned with the
following matters:
The meaning of the word Java
The source of origin of services.
Reasonable consumer.
Judicious exercise of discretion.
Concurrent usage.
Trade competition.
The departure is prejudicial to the Respondent because the affidavit in reply to the notice of
motion giving the grounds of appeal is specific to those grounds. In the premises the
Respondent‘s Counsel prays that the appeal is struck out. Without prejudice Counsel submitted