1. Before the court for determination is the Plaintiff’s application dated 21st November 2022 made, inter alia, under Order 39 Rule 1 and Order 40 Rules 1 and 2 of the Civil Procedure Rules seeking the following:
1. Spent*
2. Spent*
3. Pending the hearing and determination of the suit herein, a temporary injunction do issue restraining the 2nd Defendant/Respondent whether by itself, its directors, officers, employees, servants, agents, licensees, franchisees or anyone claiming under them howsoever from infringing and/or passing off the Plaintiff/Applicant’s intellectual property rights over the Applicant’s rightfully acquired legal commercial reputation in the market through trading, promoting, advertising, marketing, carrying on business or howsoever continuing with the use of its particular trademarks associated with the products namely “V-MIN C GOLD DRINK 150 ml”.
4. Pending the hearing and determination of the application and suit herein an Anton Pillar Order to issue allowing superintended seizure of all documents, publicity material and any other thing in the Defendant/Respondent’s possession marked “V-MIN C GOLD DRINK 150 ml” or the name “VITAMIN C” purported to be used in the market by the 2nd Respondent which create confusion and infringes on the Plaintiff/Applicant’s trade mark.
5. Costs of and incidental to this application be provided for
2. The application is supported by the grounds set out on its face together with the affidavits of Rita Mavunda, the Plaintiff’s sole director/shareholder, sworn on 18th November 2022 and 8th December 2022 respectively. It is opposed by the 1st Defendant through the replying affidavit of its director Christopher David Pomeroy, sworn on 2nd December 2022 and by the 2nd Defendant also through the replying affidavit of its director, Dipesh Valani, sworn on 7th December 2022. The parties also rely on their respective written submissions which are on record and brief oral submissions made by their counsel.
3. The Plaintiff is in the business of importation, distribution and sale of functional beverages of carbonated soft drinks fortified with vitamins in the region. It avers that during it has earned considerable repute and the trust of the general public in the market. It contends that the 1st Defendant granted it territorial exclusivity to import and sell a specific range of branded beverage products by virtue of an exclusive distribution arrangement with exclusive rights to be the sole distributor of the 1st Defendant’s in Kenya for the following brand products; V-MIN C GOLD DRINK 150 ml, V-MIN C ACTIVE SHOT DRINK 150 ml and V-MIN C KIDS DRINK 150 ml.
4. The Plaintiff states that it was to introduce the 1st Defendant’s products into the Kenyan market and gain market penetration for the 1st Defendant and in that regard it holds an exclusive license and permit to trade in the beverage products issued by the Kenya Pharmacy and Poisons Board (“the KPPB”) on clear terms with the 1st Defendant. That it therefore played a key role in facilitating the licensing and listing of the 1st Defendant’s beverage brand products with the KPPB in order to ensure regulatory compliance.
5. The Plaintiff avers that it has been using inherently distinctive marks to brand and identify the beverage products attached to its business in the Kenyan market and has since acquired a significant market penetration and reputation within Kenya through advertising, marketing and sales as a result of the use of the said marks. The Plaintiff states that it has been specifically trading in and utilizing a unique trademark for the distribution of functional beverage products in the name of “VITAMIN C” within the Kenya and has acquired a remarkable reputation and immense goodwill.
6. The Plaintiff accuses the 1st Defendant of violating the exclusive distribution arrangement thus creating confusion to the Plaintiff’s customers and the general public and for the purposes of leveraging on the Plaintiff’s acquired commercial reputation and goodwill attributed to its unique products and thereby passing off.
7. The Plaintiff alleges that the 2nd Defendant has recently been engaged in the sale and distribution of carbonated soft drinks beverage products within the Kenyan market while using a confusingly similar mark that is likely to result in consumer confusion by improperly concluding that there is an affiliation with the Plaintiff’s similar beverage products. That the 2nd Defendant has been publicizing its product through advertisements on various social media sites including Facebook and misrepresenting to the public that the Plaintiff’s trademarks belong to it by illegally trading similar beverage products being sold at various Kenyan retail and supermarket outlets, physical locations and online platforms without the Plaintiff’s express approval over the use of the exclusive marks and designs.
8. The Plaintiff avers that the Defendants’ unlawful actions, predatory tactics and business poaching are causing serious damage to its business by targeting the its customers and unsuspecting members of the general public. That the Defendants’ continued violation of the Plaintiff’s Trade Mark and intellectual property rights puts at risk the Plaintiff’s market reputation and exposes it to unquantifiable risk and loss.
9. The Plaintiff states that the trade design of using the names “VITAMIN C” and “VITAMIN C GOLD DRINK 150 ml” interchangeably, utilizing and/or disguising the Plaintiff’s location and copying its mode of trade is not only deceptive but also calculated to cause confusion among the public, especially the Plaintiff’s customers by misrepresenting that the Defendants’ beverage products are alike to and related with those of the Plaintiff.
10. The Plaintiff asserts that it has not licensed, neither has the 2nd Defendant sought to be granted permission or license to utilize, copy or modify the Plaintiff’s trademarks and that unless the court restrains the Defendants’ illegal actions, the 2nd Defendant is likely to continue passing off the Plaintiff’s Trade Name and Mark resulting to further misrepresentation and confusion in the market between the Plaintiff’s and the Defendants’ beverage brand products which would cause irreparable damage to the Plaintiff.
11. The Plaintiff is apprehensive that the Defendants have in their possession incriminating documents or things, and that there is real possibility that they may remove and destroy such material before any application inter parties or the suit can be determined by the court, materials which are necessary for the Plaintiff to prove its action in passing off and that it is crucial for an Anton Pillar Order to issue on the Defendants’ outlets in various listed outlets.
12. The Plaintiff avers that if the court does not allow its application, it stands to suffer substantial and irreparable loss such that even if its case is successful, the damage occasioned would be irreversible and damages would not be sufficient to compensate it. The Plaintiff further avers that the Defendants will not suffer any prejudice if the application is allowed and it is just, fair and in the interest of justice that the orders prayed for herein be granted
13. The Defendants take a common position in opposing the Plaintiff’s application. Their position is that Plaintiff has not made out a case for the grant of the relies sought in the application. They urge that the Plaintiff has presented insufficient evidence to support its application. They also submit that there is no basis to grant Anton Pillar orders.
14. The 1st Defendant specifically denies that it has any distribution arrangement with the Plaintiff or that it granted the Plaintiff territorial exclusivity to import and sell a specific range of the its beverage brand products or that the Plaintiff has acquired the exclusive rights to be the sole distributor of the 1st Defendant’s beverage products in Kenya.
15. The 1st Defendant contends that MWD Beverages Pte Ltd is the Trade Mark owner and it assigned its Trade Mark to the 1st Defendant to produce drinks under its trademarks of “V-MIN” and “Walker’s” for sale to Kenya and to many countries around the world. That these carbonated soft drinks fortified with Vitamins are referred to as: V-Min C Gold Drink 150ml, V-Min Active Shot Drink 150ml and V-Min Kids Drinks 150ml.
16. The 1st Defendant states that it has advertised its brand and trademark to the extent of being globally known to a certain class of sophisticated persons that consume products of its kind. It insists that the Plaintiff does not hold the exclusive right to the distribution of its products in as much as the Plaintiff assisted it to attain licenses from the KPPB. It points out the “sample agreements” allegedly entered into by the Plaintiff with 3rd Parties do not in themselves establish the existence of an exclusive distributorship with the 1st Defendant and that the Plaintiff has not provided any signed agreement to prove their actual existence but has simply indicated their intention to engage third parties.
17. The Defendants contend that there is no evidence to substantiate the Plaintiff’s allegations of any goodwill allegedly acquired over the years yet the only document produced by the Plaintiff, also one allegedly indicating when the relationship commenced, is dated March 2021. The 1st Defendant states that even where the Plaintiff alleges that it was its agent, it has not produced any evidence of sales that can meet the minimal expectations of such a business.
18. The main issue for determination is whether the Plaintiff has made out a case for the grant of interlocutory relief.
19. Before I deal with the substantive issue, let me deal with the Defendants’ objection that the Plaintiff’s deponent is not authorized by the Plaintiff to swear affidavits on its behalf. In its depositions, the Plaintiff’s deponent states that she is, “…duly authorized by the Applicant and hence competent to swear this Affidavit”. The Court of Appeal has always maintained that it is sufficient for deponents to state that “they were duly authorized” and it is then up to the objector to demonstrate by evidence that they were not so authorized (See Makupa Transit Shade Limited & Another v Kenya Ports Authority & another MSA CA Civil Appeal No. 44 of 2014 [2015] eKLR). The Defendants do not deny that the Plaintiff’s deponent is the sole director/shareholder of the Plaintiff and they have not tendered any evidence to demonstrate that she is not so authorized to swear affidavits on behalf of the Plaintiff. In any case, such an omission is not fatal and does not invalidate a suit or application as the Plaintiff can always be ordered to file the same at a subsequent date (see Leo Investments Ltd v Trident Insurance Company Ltd [2014] eKLR and Republic v Registrar General & 13 Ors [2005] eKLR).
20. Turning to the substance of the application, I do not think there is any dispute that the three requirements the Plaintiff has to satisfy in order to obtain an injunction were settled in Giella v Cassman Brown [1973] EA 348. The court held that a plaintiff must demonstrate that it has a prima facie case with a probability of success, demonstrate irreparable injury which cannot be compensated by an award of damages if a temporary injunction is not granted, and if the court is in doubt show that the balance of convenience is in its favour. In Nguruman Limited v Jane Bonde Nielsen and 2 Others NRB CA Civil Appeal No. 77 of 2012 [2014] eKLR the Court of Appeal reiterated these conditions and further clarified that they are to be applied as separate, distinct and logical hurdles which an applicant is expected to surmount sequentially. This means that if the applicant does not establish a prima facie case then irreparable injury and balance of convenience do not require consideration. On the other hand, if a prima facie case is established, then the court will consider the other conditions.
21. As to what constitutes a prima facie case, the Court of Appeal in Mrao Ltd v First American Bank of Kenya Limited and 2 Others [2003] eKLR explained that it is, “a case in which on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter.” Thus, in order to succeed in getting an interlocutory injunction, the Plaintiff is expected to show that it has an exclusive right to the use to the 1st Defendant’s trademark.
22. The Plaintiff’s case is that it is entitled to the exclusive use of the 1st Defendant’s trademark based on an exclusive distribution arrangement between itself and the 1st Defendant anchored on an oral offer and acceptance, which was demonstrated by the conduct of the parties and crystallized into writing through correspondence between the parties and in particular, the letter by the 1st Defendant to the KPPB dated 5th March 2022 explicitly acknowledging the Plaintiff as the exclusive distributor in Kenya for products manufactured by the 1st Defendant.
23. The Defendants deny any exclusive distribution arrangement between the parties that confers upon the Plaintiff with an exclusive right to use the 1st Defendant’s trademarks. As regards the letter of 5th March 2022, the Defendants aver that it was for the purpose of obtaining licenses from the KPPB and nothing else.
24. As I understand, the basis of the Plaintiff’s prima facie case is that it has exclusive rights granted to it by the 1st Defendant to distribute certain beverages. I have studied the letter of 5th March 2022 together with the correspondence between the parties and I do not find any basis to conclude that the Plaintiff was granted exclusive rights and usage of the 1st Defendant’s trademarks to the exclusion of others including the 2nd Defendant. I have considered the parties’ correspondence after the letter of 5th March 2022 which indicates that the parties were still in a ‘negotiating phase’. For instance, in an email dated 6th March 2020, the 1st Defendant’s representative informs the Plaintiff’s director that “We certainly look forward to begin distribution discussion with you when the timing is right …..” which demonstrates that the issue of distribution had not crystallized. This lends credence to the 1st Defendant’s averment that the letter of 5th March 2022 was for purposes of licensing and nothing more should be read into it.
25. Since the Plaintiff’s rights flows from its relationship with the 1st Defendant, I do not find any prima facie case that the Plaintiff has exclusive rights for the use of the 1st Defendant’s trademarks to the exclusion of other parties including the 2nd Defendant. What is also apparent at this stage is that the 2nd Defendant is an appointed distributor of the 1st Defendant’s Walker’s branded product within the Kenyan market and that the Plaintiff does not own any rights to the trademark V-Min C Gold/ Vitamin C and the said brand remains the property of the 1st Defendant. The Plaintiff does not have a greater right than the 1st Defendant to enforce such a right as against 2nd Defendant.
26. Since the Plaintiff has failed to surmount the first hurdle of satisfying an injunction, its application collapses and any inquiry ends at that point in accordance with the dicta in Nguruman Limited v Jane Bonde Nielsen (supra). This means that that the court cannot grant the Anton Pillar order as there is not right to protect or otherwise enforce.
27. For the reasons I have set out above, I dismiss the Plaintiff’s application dated 21st November 2022 with costs to the Defendants.
DATED and DELIVERED at NAIROBI this 19th day of DECEMBER 2022.
D. S. MAJANJA
JUDGE
1. Spent*
2. Spent*
3. Pending the hearing and determination of the suit herein, a temporary injunction do issue restraining the 2nd Defendant/Respondent whether by itself, its directors, officers, employees, servants, agents, licensees, franchisees or anyone claiming under them howsoever from infringing and/or passing off the Plaintiff/Applicant’s intellectual property rights over the Applicant’s rightfully acquired legal commercial reputation in the market through trading, promoting, advertising, marketing, carrying on business or howsoever continuing with the use of its particular trademarks associated with the products namely “V-MIN C GOLD DRINK 150 ml”.
4. Pending the hearing and determination of the application and suit herein an Anton Pillar Order to issue allowing superintended seizure of all documents, publicity material and any other thing in the Defendant/Respondent’s possession marked “V-MIN C GOLD DRINK 150 ml” or the name “VITAMIN C” purported to be used in the market by the 2nd Respondent which create confusion and infringes on the Plaintiff/Applicant’s trade mark.
5. Costs of and incidental to this application be provided for
2. The application is supported by the grounds set out on its face together with the affidavits of Rita Mavunda, the Plaintiff’s sole director/shareholder, sworn on 18th November 2022 and 8th December 2022 respectively. It is opposed by the 1st Defendant through the replying affidavit of its director Christopher David Pomeroy, sworn on 2nd December 2022 and by the 2nd Defendant also through the replying affidavit of its director, Dipesh Valani, sworn on 7th December 2022. The parties also rely on their respective written submissions which are on record and brief oral submissions made by their counsel.
3. The Plaintiff is in the business of importation, distribution and sale of functional beverages of carbonated soft drinks fortified with vitamins in the region. It avers that during it has earned considerable repute and the trust of the general public in the market. It contends that the 1st Defendant granted it territorial exclusivity to import and sell a specific range of branded beverage products by virtue of an exclusive distribution arrangement with exclusive rights to be the sole distributor of the 1st Defendant’s in Kenya for the following brand products; V-MIN C GOLD DRINK 150 ml, V-MIN C ACTIVE SHOT DRINK 150 ml and V-MIN C KIDS DRINK 150 ml.
4. The Plaintiff states that it was to introduce the 1st Defendant’s products into the Kenyan market and gain market penetration for the 1st Defendant and in that regard it holds an exclusive license and permit to trade in the beverage products issued by the Kenya Pharmacy and Poisons Board (“the KPPB”) on clear terms with the 1st Defendant. That it therefore played a key role in facilitating the licensing and listing of the 1st Defendant’s beverage brand products with the KPPB in order to ensure regulatory compliance.
5. The Plaintiff avers that it has been using inherently distinctive marks to brand and identify the beverage products attached to its business in the Kenyan market and has since acquired a significant market penetration and reputation within Kenya through advertising, marketing and sales as a result of the use of the said marks. The Plaintiff states that it has been specifically trading in and utilizing a unique trademark for the distribution of functional beverage products in the name of “VITAMIN C” within the Kenya and has acquired a remarkable reputation and immense goodwill.
6. The Plaintiff accuses the 1st Defendant of violating the exclusive distribution arrangement thus creating confusion to the Plaintiff’s customers and the general public and for the purposes of leveraging on the Plaintiff’s acquired commercial reputation and goodwill attributed to its unique products and thereby passing off.
7. The Plaintiff alleges that the 2nd Defendant has recently been engaged in the sale and distribution of carbonated soft drinks beverage products within the Kenyan market while using a confusingly similar mark that is likely to result in consumer confusion by improperly concluding that there is an affiliation with the Plaintiff’s similar beverage products. That the 2nd Defendant has been publicizing its product through advertisements on various social media sites including Facebook and misrepresenting to the public that the Plaintiff’s trademarks belong to it by illegally trading similar beverage products being sold at various Kenyan retail and supermarket outlets, physical locations and online platforms without the Plaintiff’s express approval over the use of the exclusive marks and designs.
8. The Plaintiff avers that the Defendants’ unlawful actions, predatory tactics and business poaching are causing serious damage to its business by targeting the its customers and unsuspecting members of the general public. That the Defendants’ continued violation of the Plaintiff’s Trade Mark and intellectual property rights puts at risk the Plaintiff’s market reputation and exposes it to unquantifiable risk and loss.
9. The Plaintiff states that the trade design of using the names “VITAMIN C” and “VITAMIN C GOLD DRINK 150 ml” interchangeably, utilizing and/or disguising the Plaintiff’s location and copying its mode of trade is not only deceptive but also calculated to cause confusion among the public, especially the Plaintiff’s customers by misrepresenting that the Defendants’ beverage products are alike to and related with those of the Plaintiff.
10. The Plaintiff asserts that it has not licensed, neither has the 2nd Defendant sought to be granted permission or license to utilize, copy or modify the Plaintiff’s trademarks and that unless the court restrains the Defendants’ illegal actions, the 2nd Defendant is likely to continue passing off the Plaintiff’s Trade Name and Mark resulting to further misrepresentation and confusion in the market between the Plaintiff’s and the Defendants’ beverage brand products which would cause irreparable damage to the Plaintiff.
11. The Plaintiff is apprehensive that the Defendants have in their possession incriminating documents or things, and that there is real possibility that they may remove and destroy such material before any application inter parties or the suit can be determined by the court, materials which are necessary for the Plaintiff to prove its action in passing off and that it is crucial for an Anton Pillar Order to issue on the Defendants’ outlets in various listed outlets.
12. The Plaintiff avers that if the court does not allow its application, it stands to suffer substantial and irreparable loss such that even if its case is successful, the damage occasioned would be irreversible and damages would not be sufficient to compensate it. The Plaintiff further avers that the Defendants will not suffer any prejudice if the application is allowed and it is just, fair and in the interest of justice that the orders prayed for herein be granted
13. The Defendants take a common position in opposing the Plaintiff’s application. Their position is that Plaintiff has not made out a case for the grant of the relies sought in the application. They urge that the Plaintiff has presented insufficient evidence to support its application. They also submit that there is no basis to grant Anton Pillar orders.
14. The 1st Defendant specifically denies that it has any distribution arrangement with the Plaintiff or that it granted the Plaintiff territorial exclusivity to import and sell a specific range of the its beverage brand products or that the Plaintiff has acquired the exclusive rights to be the sole distributor of the 1st Defendant’s beverage products in Kenya.
15. The 1st Defendant contends that MWD Beverages Pte Ltd is the Trade Mark owner and it assigned its Trade Mark to the 1st Defendant to produce drinks under its trademarks of “V-MIN” and “Walker’s” for sale to Kenya and to many countries around the world. That these carbonated soft drinks fortified with Vitamins are referred to as: V-Min C Gold Drink 150ml, V-Min Active Shot Drink 150ml and V-Min Kids Drinks 150ml.
16. The 1st Defendant states that it has advertised its brand and trademark to the extent of being globally known to a certain class of sophisticated persons that consume products of its kind. It insists that the Plaintiff does not hold the exclusive right to the distribution of its products in as much as the Plaintiff assisted it to attain licenses from the KPPB. It points out the “sample agreements” allegedly entered into by the Plaintiff with 3rd Parties do not in themselves establish the existence of an exclusive distributorship with the 1st Defendant and that the Plaintiff has not provided any signed agreement to prove their actual existence but has simply indicated their intention to engage third parties.
17. The Defendants contend that there is no evidence to substantiate the Plaintiff’s allegations of any goodwill allegedly acquired over the years yet the only document produced by the Plaintiff, also one allegedly indicating when the relationship commenced, is dated March 2021. The 1st Defendant states that even where the Plaintiff alleges that it was its agent, it has not produced any evidence of sales that can meet the minimal expectations of such a business.
18. The main issue for determination is whether the Plaintiff has made out a case for the grant of interlocutory relief.
19. Before I deal with the substantive issue, let me deal with the Defendants’ objection that the Plaintiff’s deponent is not authorized by the Plaintiff to swear affidavits on its behalf. In its depositions, the Plaintiff’s deponent states that she is, “…duly authorized by the Applicant and hence competent to swear this Affidavit”. The Court of Appeal has always maintained that it is sufficient for deponents to state that “they were duly authorized” and it is then up to the objector to demonstrate by evidence that they were not so authorized (See Makupa Transit Shade Limited & Another v Kenya Ports Authority & another MSA CA Civil Appeal No. 44 of 2014 [2015] eKLR). The Defendants do not deny that the Plaintiff’s deponent is the sole director/shareholder of the Plaintiff and they have not tendered any evidence to demonstrate that she is not so authorized to swear affidavits on behalf of the Plaintiff. In any case, such an omission is not fatal and does not invalidate a suit or application as the Plaintiff can always be ordered to file the same at a subsequent date (see Leo Investments Ltd v Trident Insurance Company Ltd [2014] eKLR and Republic v Registrar General & 13 Ors [2005] eKLR).
20. Turning to the substance of the application, I do not think there is any dispute that the three requirements the Plaintiff has to satisfy in order to obtain an injunction were settled in Giella v Cassman Brown [1973] EA 348. The court held that a plaintiff must demonstrate that it has a prima facie case with a probability of success, demonstrate irreparable injury which cannot be compensated by an award of damages if a temporary injunction is not granted, and if the court is in doubt show that the balance of convenience is in its favour. In Nguruman Limited v Jane Bonde Nielsen and 2 Others NRB CA Civil Appeal No. 77 of 2012 [2014] eKLR the Court of Appeal reiterated these conditions and further clarified that they are to be applied as separate, distinct and logical hurdles which an applicant is expected to surmount sequentially. This means that if the applicant does not establish a prima facie case then irreparable injury and balance of convenience do not require consideration. On the other hand, if a prima facie case is established, then the court will consider the other conditions.
21. As to what constitutes a prima facie case, the Court of Appeal in Mrao Ltd v First American Bank of Kenya Limited and 2 Others [2003] eKLR explained that it is, “a case in which on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter.” Thus, in order to succeed in getting an interlocutory injunction, the Plaintiff is expected to show that it has an exclusive right to the use to the 1st Defendant’s trademark.
22. The Plaintiff’s case is that it is entitled to the exclusive use of the 1st Defendant’s trademark based on an exclusive distribution arrangement between itself and the 1st Defendant anchored on an oral offer and acceptance, which was demonstrated by the conduct of the parties and crystallized into writing through correspondence between the parties and in particular, the letter by the 1st Defendant to the KPPB dated 5th March 2022 explicitly acknowledging the Plaintiff as the exclusive distributor in Kenya for products manufactured by the 1st Defendant.
23. The Defendants deny any exclusive distribution arrangement between the parties that confers upon the Plaintiff with an exclusive right to use the 1st Defendant’s trademarks. As regards the letter of 5th March 2022, the Defendants aver that it was for the purpose of obtaining licenses from the KPPB and nothing else.
24. As I understand, the basis of the Plaintiff’s prima facie case is that it has exclusive rights granted to it by the 1st Defendant to distribute certain beverages. I have studied the letter of 5th March 2022 together with the correspondence between the parties and I do not find any basis to conclude that the Plaintiff was granted exclusive rights and usage of the 1st Defendant’s trademarks to the exclusion of others including the 2nd Defendant. I have considered the parties’ correspondence after the letter of 5th March 2022 which indicates that the parties were still in a ‘negotiating phase’. For instance, in an email dated 6th March 2020, the 1st Defendant’s representative informs the Plaintiff’s director that “We certainly look forward to begin distribution discussion with you when the timing is right …..” which demonstrates that the issue of distribution had not crystallized. This lends credence to the 1st Defendant’s averment that the letter of 5th March 2022 was for purposes of licensing and nothing more should be read into it.
25. Since the Plaintiff’s rights flows from its relationship with the 1st Defendant, I do not find any prima facie case that the Plaintiff has exclusive rights for the use of the 1st Defendant’s trademarks to the exclusion of other parties including the 2nd Defendant. What is also apparent at this stage is that the 2nd Defendant is an appointed distributor of the 1st Defendant’s Walker’s branded product within the Kenyan market and that the Plaintiff does not own any rights to the trademark V-Min C Gold/ Vitamin C and the said brand remains the property of the 1st Defendant. The Plaintiff does not have a greater right than the 1st Defendant to enforce such a right as against 2nd Defendant.
26. Since the Plaintiff has failed to surmount the first hurdle of satisfying an injunction, its application collapses and any inquiry ends at that point in accordance with the dicta in Nguruman Limited v Jane Bonde Nielsen (supra). This means that that the court cannot grant the Anton Pillar order as there is not right to protect or otherwise enforce.
27. For the reasons I have set out above, I dismiss the Plaintiff’s application dated 21st November 2022 with costs to the Defendants.
DATED and DELIVERED at NAIROBI this 19th day of DECEMBER 2022.
D. S. MAJANJA
JUDGE