Case Digest

Case Digest: Big win for Kenyan firm in the Thermos Trademark case

This trademark case appeared before a Mombasa High Court pitting Doshi Iron Mongers against a Chinese Company previously known as Thermos Hong Kong. The former company is based in Mombasa and manufactures insulated flasks whereas the latter company is owned by Thermos Limited which has re-branded to Household Containers Limited.

Intricacies of the case is that Doshi Iron Mongers wanted Thermos Hong Kong to be barred from using the “Thermos” trademark. The plaintiff argued that the ‘thermos” trademark was largely printed on most of its flasks sold locally and thus the conduct of Thermos Hong Kong using its trademark gave rise to unfair competition.

Through lawyer, Willies Oluga, the company linked to Mombasa tycoon Ashok Doshi claimed ownership of the trademark asserting that the Registrar of Trademarks had given them the authority to use the trademark in the manufacture and trade of goods relating to the emblem. 

Mr. Doshi through his lawyer claimed that after successfully conducting a search of the trademark “Thermos” on June 23, 2004, the Registrar of Trademarks informed him that it was available for registration. However, on July 12, 2006 upon application to register the trademark it was rejected for reasons that it was identical to another trademark owned by Thermos Hong Kong Limited.

Later on after Thermos Hong Kong failed to renew the trademark, Doshi Iron Mongers was registered as the proprietor of the trademark.

Consequently, On December 1, 2017 Hon Justice P.J. Otieno issued an injunction which stopped Thermos Hong Kong from conducting any trade using the “Thermos” trademark pending the hearing and determination of an appeal lodged by Doshi Iron Mongers challenging the decision by Assistant Registrar of Trademarks who had awarded the trademark to Thermos Hong Kong. 

The Hong Kong company defended its proprietorship over the trademark. The company said that it had been erroneously removed from the registry by the Industrial Property journal and had never ceded ownership of the trademark as was alleged. Moreover the company claimed that the notices of non renewal had been sent to Household containers limited instead of Thermos Hong Kong. As such the defendants averred that the advertisement of removal of the trademark “Thermos” which had been published in the Industrial Property Journal was invalid, null and void as to the inconsistency.

The defendants claimed the trademark as their own and rebuked Doshi Iron Mongers for willingly and mistakenly selling goods bearing the thermos trademark.

In the appeal case, a court based in Mombasa ruled that the restoration proceeding by Assistant Registrar of Trademarks which led to the registration of Chinese firm Thermos Hong Kong Limited as the legal owner of the trademark was null and void. Hon Justice Patrick Otieno quashed the proceedings and directed the application for the trademark by the Kenyan firm to be considered. 

The judge claimed that the Assistant Registrar had no jurisdiction to reopen and hear an application that had been heard and determined by the registrar on the basis that the statute vesting jurisdiction did not permit review of own orders.

“Following that decision, it follows that what is undertaken without jurisdiction adds to nothing.”

“The upshot is that this appeal succeeds in entirety and in terms of Section 52 of the Trademarks Act as read with Section 78 of the Civil Procedure Act. I do set aside the decision of the Assistant Registrar dated October 24,2017 together with the decision of dated January 11,2011 restoring the trademark no. 17003 (Thermos),” the judge said.

“That now leaves the registrar to consider the appellant’s application for registration on its merits and in accordance with the law,” the judgement further read.

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