12 CAP. 401]
Trade Marks
erwise than by an act that is deemed to be an infringement by virtue
of section eleven, no injunction. interdict or other relief shall be
granted to the plaintiff if the defendant establishes to the satisfaction
of the High Court that the use of which the plaintiff complains is not
likely to deceive or cause confusion or to be taken as indicating a
connection in the course of trade between the goods and some per
son having the right either as proprietor or as registered user to use
the trade mark.
Infringement
by breach of
certain restric
tions
11. (1) Where, by a contract in writing made with the proprietor
or a registered user of a registered trade mark, a purchaser or owner
of goods enters into an obligation to the effect that he will not do, in
relation to the goods, an act to which this section applies, any person
who, being the owner for the time being of the goods and having
notice of the obligation, does that act or authorises it to be done, in
relation to the goods, in the course of trade or with a view to any
dealing therewith in the course of trade shall be deemed thereby to
infringe the right to the use of the trade mark given by the registra
tion thereof, unless that person became the owner of the goods by
purchase for money or money's worth in good faith before receiving
notice of the obligation or by virtue of a title derived through another
who so became the owner thereof.
(2) The acts to which this section applies are
(a) the application of the trade mark upon the goods after they
have suffered alteration in any manner specified in the con
tract as respects their state or condition, get-up or packing;
(b)
in a case in which the trade mark is upon the goods, the
alteration, part removal or part obliteration thereof;
.
(c)
in a case in which the trade mark is upon the goods and
there is also thereon othermatter, being matter indicating a
connection in the course of trade between the proprietor or
registered user and the goods, the removal or obliteration,
whether wholly or partly, of the trade mark unless that
other matter is wholly removed or obliterated;
(d) in a case in which the trade mark is upon the goods, the
application of any other trade mark to the goods;
(e) in a case in which the trade mark is upon the goods, the
addition to the goods of any other matter in writing that is
likely to injure the reputation of the trade mark.
(3) In this section, references, in relation to any goods, to the pro
prietor, to a registered user and to the registration of a trade mark
shall be construed, respectively, as references 10 the proprietor in
whose name the trade mark is registered, to a registered user who is
registered and to the registration of the trade mark, in respect of those
goods, and the expression "upon" includes, in relation to any goods,
a reference to physical relation thereto.