A-Plus Funeral Management Limited has lost a case it had filed against A-Class Funeral Services Uganda Limited over trade name infringement.
A-Plus ran to the High Court in 2020 suing A-Class Funeral Services for having a name that they said was confusingly similar to theirs.
The company said b using the name A-Class Funeral Services, the new company was in a wrongful attempt to pass off A-Plus Funeral Management Limited and mislead the public into wrong belief.
However, in its decision, the High Court judge, Musa Ssekaana ruled that it is not true that the two names can be confused by members of the public, adding that there is nothing like causing confusion because of a similar phonetic sound between the two.
“This court does not agree that the similar phonetic sound is likely to cause confusion to the public in the funeral service industry. The customer in the nature of business is generally attentive, discerning, well-informed, reasonably observant and circumspect. Such a user is less likely to be confused as to particulars of a funeral service provider than an ordinary mourner or bereaved customer or someone procuring services on behalf of a bereaved client,” Justice Ssekaana said.
The judge argued that the issue of confusion of marks, names at issue must not be considered from the point of view of the average hurried or confused consumer having an imperfect recollection of the opponent’s mark or name who might encounter the name of the plaintiff.
“That does not mean a rash, careless or unobservant purchaser(customer) on one hand, nor on the other does it mean a person of higher education, one possessed of expert qualifications. It is the probability of the average person endowed with average intelligence acting with ordinary caution being deceived.”
The judge therefore reasoned that the claim by A-Plus that A-Class Funeral Services Uganda Limited is a pass off of their business name doesn’t hold water in the current circumstances.
He explained that passing off is a form of a tort based on common law.
“The two trade names of the plaintiff and 1st defendant as shown earlier are distinct and the plaintiff’s submission that they similar phonetic sound has been found baseless. It is very true that the reputation and goodwill of the business which often attached to the trade name will be protected by courts. Equity would intervene to provide relief to a plaintiff whose customers had been misled by his competitors.”
The judge therefore ruled that A-Class Funeral Services name is not in any way confusingly similar to that A-Plus Funeral Management .
He dismissed the suit but ordered no costs on either side.