“The mark in consideration in these opposition proceedings is a word mark, “DAWA MOJA STRONG”. The mark is comprised of two Kiswahili words which translate to “MEDICINE” and “ONE” respectively, in the English language. The third element of the mark is the word “STRONG”. This means that considered as a whole, the mark would literary (sic) be translated to mean “ONE STRONG MEDICINE”. It is my view that when such a term is sought to be registered and used as a trade mark for pharmaceutical products, the application must fail because the term does not qualify as a trade mark under the provisions of the Trade Marks Act.” – Assistant Trademark Registrar, Ruling in DAWA MOJA STRONG Trade Mark Opposition.
This blogger has received a copy of a recent trade mark ruling by the Registrar of Trade Marks referenced as In Re TMA No. 75546 “DAWA MOJA STRONG”, Opposition By Dawa Ltd and Sonal Holdings Ltd., 14th April 2015. A copy of the ruling is available here.
In this case, Chandaria Pharmaceuticals filed application to register the trade mark “DAWA MOJA STRONG” as a word mark with a disclaimer of the words “DAWA”, “MOJA” and “STRONG” each separately and apart from the mark as a whole. Dawa and Sonal both opposed the registration of Chandaria’s mark as the proprietors of a number of trade marks comprised of the terms “DAWA” and “MOJA” respectively including “DAWAGENTA”, “DAWADOXYN”, “DAWAHIST” and “SONA MOJA” respectively.
The Registrar agreed with Dawa and Sonal finding that Chandaria’s word mark “DAWA MOJA STRONG” failed to meet the definition of a mark because it is not comprised of an invented word(s) as provided for under section 12 (1) (c) of the Act, it contains “a direct reference to the quality and character of the goods” for which the mark is sought to be registered, contrary to the provisions of section 12 (1) (d) of the Act and contains no distinctive element as provided for under section 12 (1) (e) of the Trade Mark Act.
In addition, the Registrar noted that Chandaria voluntarily made its trade mark application with a disclaimer as opposed to doing so as a requirement from the Registrar of Trade Marks during examination of the application. This means that Chandaria were aware that none of the three elements of their mark was distinctive or could act as a badge to identify their pharmaceutical products in the Kenyan market. The ruling makes it clear that the term “DAWA MOJA STRONG” would never be a trade mark to distinguish the pharmaceutical products of Chandaria from the pharmaceutical products of all the other traders in Kenya.