1.

0 Passing Off in tort law:

Section 1(1) The Trademarks Act, 2010 defines passing off to mean falsely representing one`s own product as that of
another in an attempt to deceive potential buyers. This normally occurs where a trader sells the product which actually
resembles that of the person who has the exclusive right thereof. in Reckitt and Colman Products Ltd v Borden Inc and
others [1990] 1 All ER 873 where court held that a man is not to sell his own goods under the pretense that they are the
goods of another man and accordingly, a misrepresentation achieving such a result is actionable because it constitutes an
invasion of proprietary rights vested in the p. Section 36 (2) The Trademarks Act, 2010 of Uganda provides as follows;
(1) Subject to sections 41 and 24 of the act, the registration before or after the commencement of this Act, of a person in
Part A of the register as owner of a trademark other than a certification mark in respect of any goods shall, if valid, give or
be taken to have given to that person the exclusive right to the use of the trademark in relation to those goods. The law of
passing off is designed to prevent misrepresentation in the course of trade to the public for e.g that there is some sort of
association between the businesses of two traders. In Erven Warnick v Town end & sons ltd[1979]A.C.731, where
advocaat sued the manufacturer of drink similar but not identical to advocaat, but which was successfully marketed as
being advocaat

1.1Element to prove in an action of passing off:

There are 3 essential element often referred to as the classic trinity in tort which must be fulfilled. In Reckitt and Colman
Products Ltd v Borden Inc and others [1987] ALLER 45. Lord Jauncey of Tullichettle had laid down 5 requirement
but following the decision in Erven Warnink BV vs. J Town end & Sons (Hull) [1990] 1 All ER 873 which gives 3
essential ingredients of a passing off action namely:
A. Goodwill owned by a trader: The plaintiff has to proof about his reputation to his customer and therefore as a result
of the defendant, his reputation was injured or affected.
B. Misrepresentation: The plaintiff has to proof to show false representation to the public to have them believe that the
goods/ service of the defendant are that of the plaintiff. There must be a connection between the plaintiff goods and
defendant goods/ trade. They must show like hold or actual deception or confusion by the public. In the case of Erven
Warnick v Town end & sons ltd 7 1987 ALLER 45, in which the marker of the advocaat sued the manufacturer of drink
similar but not identical to advocaat, but which was successfully marketed as being advocaat.
C. Damage to goodwill: There must be a loss or diversion of the trade of dilution of goodwill. P need not prove actual or
special damage: real and tangible probability of damage is sufficient. This damage should however be reasonably
foreseeable. In Coca Cola v Harris International 2016 HCCS. court held that the deception of product which belonged
to C which had caused damage to his goodwill and therefore he was entitled for damages for losses incurred. Under such
action, the burden of proof lies on C as per section 101-102 the trademark act 2010 to prove all essential ingredient on
balance of probabilities. It is duty of the courts of law to decide similarity or identity of the marks, goods or services. The
criteria are often visual, aural and conceptual similarity. The courts of law must use common sense in determining the
case based on evidence and judicial discretion and not witness.

2.0 Types of passing off:

(a)Extended form of passing off: This is where a misrepresentation is made as to a particular quality of the product or
service cause harm to another `s goodwill. In case of Coca Cola v Harris International 2016 HCCS.,court held that the
deception of product which belonged to the claimant which had caused damage to his goodwill and therefore he was
entitled for damages for losses incurred.
(b)Reverse form of passing off: This is where a trader market another `s product or service as being his own.in Colgate
Palmolive v Sombe Supermarket ltd civil suit No.689 of 2016. The court submitted that the act of offering for sale
toothbrushes bearing the said Mark is a clear case of infringement of the plaintiff’s rights in respect of the said Trademark

3.0 Remedies avialable to an aggrieved party under such Action:

(i). Claim for punitive damages/ Exemplary damages: According to the Oxford a Dictionary of Law Fifth Edition
Edited by Elizabeth A. Martin punitive damages are exemplary or vindictive damages given to punish the defendant:
(ii). Permanent injunctions: The court may order the defendant to stop producing similar product that resembles that of
plaintiff. Section 81(1) trademark act 2010 empowers the high to order an injunction against any parties to the conflict. In
Erven Warnick v Town end & sons ltd 1987 ALLER 45, in which the marker of the advocaat sued the manufacturer of
drink similar but not identical to advocaat, but which was successfully marketed as being advocaat
(iii) Destruction of product: In Palmolive Colgate v Sombe supermarket ltd civil suit No.689 of 2016. , The court
ordered to deliver up for destruction of infringing toothbrushes in the possession of the defendant,
(iv) Damages: Section 79(4) trademark act 2010 states that a person who sustains any damage because of the
infringement of his or her rights under this Act may claim damages against the person responsible for the infringement
whether or not that person has been successfully prosecuted. section 81(1) of the trademark act empowers the court to
make such orders where necessary for the loss suffered. ". In Attorney General v. Blake [2000]UKHL 45[2001]1 AC
268 .It was held that just like breaches of contract or tort, the general principle regarding assessment of damages is that
they are compensatory for loss or injury. The general rule is that the measure of damages is to be, as far as possible, the
amount of money which will put the injured party in the same position he would have been in had he not sustained the
wrong.
(v)Imprisonment: Section 71 of trademark act 2010 provide that any person who with intention to defraud or to enable
another to defraud any person, forges or counterfeits a trade mark commits an offence and is liable on conviction to a fine
not exceeding forty eight currency points or imprisonment not exceeding two years or both.

4.0 INSURANCE AND THE LAW OF TORTS:

Negligence becomes an insurable risk. E.g., negligence committed by a business entity (or its agents or employees) that
results in an accident that causes bodily injury or property damage is covered under a general liability policy. Negligence
committed by a commercial auto driver who causes an accident which results in bodily injury or property damage is
covered by a commercial auto policy (third party insurance). Insurance therefore serves as a valuable tool by transferring
the risk of crushing liability to an insurance company. The insurance covers sums defendant is legally obliged to pay as
damages because of bodily injury or property damage. That is, it covers claims or suits against you or your company by a
person or organization that has sustained bodily injury or property damage as a result of your firm’s negligence. For A to
apply must be legally responsible for the injury or damage.

4.1.Types Of Insurances:
Two Types.. 1st insurance covers claims over losses of property for instance in a fire. Third party insurance is a contract
between the insured, the insurer for the benefit of a third party. Unlike 1st insurance, third party insurance must establish
the insured’s liability. It is called third party because three people are involved: the insurer, the insured and the person
who caused the accident. 1st insurance covers three types of risks: life assurance, personal accident insurance and health
insurance. Persons injured in motor vehicle accidents may claim special and general damages so are people who have not
been directly involved in an accident for instance those suffering mental breakdown because of injuries sustained by a
close relative or witnessing such accidents.

4.2 Indemnity Agreements and Negligence:

This covers professionals like lawyers, doctors for any professional negligence liability, which may arise out of their
practice. Since the damages may be high, insurance becomes important for the operation of the system. Insurers have
influence on the law of torts because they determine which cases go to court and very few cases end up there like it was in
Nettleship v Weston [1971] 2 QB 691 where court held that although in the very nature of things the competitor is all out
to win and that is exactly what the spectators expect of him, it is in my judgment still incumbent upon him to exercise
such degree of care as may reasonably be expected in all the circumstances. For my part, therefore, I would hold him
liable only for damages caused by errors of judgment or lapse of skill going beyond such as, in the stress of
circumstances, may reasonably be regarded as excusable." As similar to Dutton v Bognor Regis UDC [1972] 2 QB 373
[1972] 1 All ER 462 CA; [1972] 2 WLR 299;
 NKUMBA UNIVERTSITY

SCHOOL OF LAW AND INSTITUTE OF CRIMINAL JUSTICE

Course work

COURSE: Bachelor of Laws (LLB)

ACADEMIC YEAR: Year 2, Semester 2

COURSE UNIT: Tort 2

LECTURER: Mr.Abdul Nasser Kigozi

STUDENT NUMBER: 2200100635

STUDENTS INDEX NO.: 2022/AUG/LLB/B230747/DAY

DATE OF SUBMISSION: 11TH APRIL, 2024.

QUESTION:

A summary of passing off in tort law and insurance and the law of torts: