the court should not determine anything in controversy regarding the right of the Respondent for
registration. There is no evidence that the registrar refused the registration. There is no decision
from which anybody has appealed. All proceedings in this court relating to the Respondent's
application for registration of a trademark are stayed.
Regarding the counterclaim what remains is the question of locus standi of the Respondent to
challenge the Applicant. In paragraph 5 (vi) of the counterclaim, it is averred that the
Counterclaimant shall further contend that the plaintiffs only got registered after the defendant
had already applied for the same trademark to deal in the same goods and more so that it
concerns a “different Moon” for the defendants and “Purple Moon” for the plaintiffs therefore
there is no way that they are confusing to the consumers of the goods.
Parties are bound by their pleadings and cannot assert a different fact in contradiction of their
own pleading. While the Respondent could have enjoyed locus standi to challenge the
registration of the Applicant on the ground that it had been dealing in the same goods or similar
or identical trademark prior to registration of the Applicant, by averring that the trademark are
different, they are suggesting that they would not be prejudiced by the Applicants marks.
Immediately thereafter in paragraph 6 of the counterclaim, the Respondent averred that:
“The Counterclaimant shall contend that the Counter Defendant is not the duly authorised
agent of the manufacturer nor does it possess a valid authority from JIANSGU OUMAN
TEXTILE TECHNOLOGY CO. LTD to deal in the sale and distribution of the above
goods in Uganda. The purported dealing in the impugned goods by the Counter
Defendant is irregular, illegal, fraudulent in nature and unlawful."
The issue of dealing in the same goods and agency in the same goods is not the same issue of the
dispute in the trademark. This is because it is possible to register a trademark that exists in
another country. I agree with the Applicant submission that what is to be considered is the
registration of the Applicant in Uganda by the registrar who ought to have taken into account any
objections to registration. A person, who has been registered, can be deregistered. The question
of locus standi of the Counterclaimant is therefore pertinent. In annexure "C2", the
Counterclaimant relies on a letter from JIANSGU OUMAN TEXTILE TECHNOLOGY CO.
LTD which is attached to paragraph 5 (iii) of the counterclaim where it is averred as follows:
"The Counterclaimant was/is a duly authorised agent in Uganda to deal in the impugned
goods/products which authority the defendant has always dealt with regards the goods in
question. (Copies of the appointment letters to Numaa Industries are hereto attached and
marked as Annexture B2 and C2).
Annexure B2 is a letter from Bingling Enterprises Ltd where it is written that they authorised the
Respondent to sell "Purple Moon" blankets all over Uganda. That they partnered with them since
April 20, 2012 and they authorised and appointed them a distributor. There is no mention of the
Decision of Hon. Mr. Justice Christopher Madrama
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