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United Republic of Tanzania

TZ004-j

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CPC International Inc. v Zainab Grain Millers Ltd, Civil Appeal No. 49 of 1995, Court of Appeal of Tanzania at Dar es Salaam

CPC International Inc. v Zainab Grain Millers Ltd., Civil Appeal No. 49 of 1995, Court of Appeal of Tanzania at Dar es Salaam

Mwaikasu, J.

Date of Judgment: August 30, 1994

Part of Civil Case No. 121 of 1993

Facts

This is an appeal from the High Court’s interlocutory order in Civil Case No. 121 of 1993. The appellant/plaintiff filed suit against the respondent/defendant, Zainab Grain Millers Ltd., for infringement of the appellant’s trade mark "MAZOLA." The mark was registered in Part A, Class 29 (Schedule III) under the Trade Marks Ordinance, Cap. 394, dating back to August 2, 1971, and was last renewed on August 2, 1992. The appellant used the mark "MAZOLA" to market and sell edible corn oil in Tanzania. The appellant alleged that the respondent used the mark to sell packets of corn derivatives, resulting in infringement and passing off, which caused damage and irreparable loss to the appellant’s reputation. The appellant sought injunctive relief and the delivery of all the respondent’s infringing materials to the appellant. The court denied the appellant’s request for a temporary injunction because the respondent’s goods bearing the mark differed from the Part A, Class 29 (Schedule III) category that the appellant’s mark was registered for and thus were not a colorable and deceptive imitation of the appellant’s trade mark. The appellant then filed this appeal.

Holdings

(i) The purpose of a temporary (interlocutory) injunction is to maintain the status quo until the suit is finally determined on its merits. A court may not resolve issues due for trial at the interlocutory stage. The nature, class, and marketing of the goods are not relevant to the grant of a temporary injunction on the basis of passing off.

(ii) The applicable principles in granting a temporary injunction are (a) a showing of a prima facie case, (b) a probability of success, and (c) the applicant might suffer irreparable loss that would not be adequately compensated by monetary damages. As no evidence has been produced, it is improper to require the applicant to prove infringement of passing off at this stage.

(iii) A prima facie case could be established if the close similarity between the trade mark and the suit was such that it would deceive or confuse the consumer.

Decision

The appeal was awarded to the appellant/plaintiff, and the High Court’s original denial of the preliminary injunction was set aside. This court granted an order for a temporary injunction pending the final determination of the main suit.