Judicial Review of Anti-Counterfeit Seizures: High Court Judgment in the ‘Omega Dustless Chalk’ Case

omega dustless chalk

This blogger has come across a recent judgment by the High Court in the case of Republic v Anti Counterfeit Agency & 3 others Ex-parte Omega Chalk Industries (1993) Limited & another [2015] eKLR. Omega Chalk Industries (1993) Limited and Chemical and School Supplies Limited (“the applicants”) sought orders orders of prohibition, certiorari and mandamus against the Anti-Counterfeit Agency (ACA) with respect to seizures made of goods bearing the alleged infringing mark ‘Omega Dustless Chalk’ registered by Omega School Boards and Accessories Limited (“the interested party”). The court dismissed the application in its entirety rightly noting that section 25(3) of the Anti-Counterfeit Act provides an “alternative remedy which is more convenient and appropriate for the resolution of the issues” raised by the applicants relating to the alleged wrongfulness of the seizure by ACA.

A copy of the judgment is available here.

In the judgment, the court held that the “court of competent jurisdiction” referred to under section 25 of the Act cannot be a “judicial review court” since the court “is not the court empowered to deal with merits” and that such a court “would not be entitled to quash a decision made” by a court “merely on such grounds as the decision being against the weight of evidence” or that the court “in arriving at its decision misconstrued the law” or that the court “believed one set of evidence as against another” or that the court has “ignored the evidence favourable to the applicant while believing the evidence not favourable to him”.

Some IP enthusiasts will recall the ruling of the Registrar of Trade Marks In the Matter of Trade Mark No. KE/T/2008/63557 “OMEGA SCHOOL BOARDS AND ACCESSORIES” (WORDS and DEVICES) in Class 16 in the Name of Omega School Boards and Accessories Limited and Expungement Proceedings Thereto by Omega Chalk Industries (1993) Limited and Chemical and School Supplies Limited delivered on August 28, 2013 where it found that the interested party as above had a valid and legal claim to the mark “OMEGA SCHOOL BOARDS AND ACCESSORIES” before applying to register the same in accordance with the provisions of section 20(1) of the Trade Marks Act. Furthermore the Registrar found that the applicants as above did not qualify as aggrieved persons in accordance with the provisions of section 35 of the Trade Marks Act. Therefore the Registrar dismissed the application for expungement of the interested party’s mark by the applicants.

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