In the recent High Court case of ABSA Kenya Limited v Barclays Bank of Kenya  eKLR, a Kenyan company has failed to temporarily halt the proposed name change of Barclays Bank to Absa. ABSA Kenya claimed that it had received cancellation of lucrative transactions due to confusion created by the planned rebranding by Barclays Bank. However the learned judge in this case dismissed the plaintiff’s application for interim injunction to ‘restrain Barclays from using, representing, infringing, advertising or in any manner whatever the trade mark and the name ABSA or its derivatives, deductives, corollaries devices and/or anxilliaries in Kenya or in any other place or at all.’
On March 2nd 2018, a local newspaper advert (pictured above) announced that Barclays Bank of Kenya would be changing its holding company name from Barclays Africa Group Limited to Absa Group Limited as part of its journey to ultimately have one brand ‘Absa’, across all Africa operations of the Group. As readers may know, Absa stands for Amalgamated Banks of South Africa and Absa Bank Limited is a wholly-owned subsidiary of the Barclays Africa Group. What readers may not know is that Absa Bank Limited is the registered proprietor of several marks in Kenya including ‘ABSA’ both word and device, pictured below as extracted from the Industrial Property Journal by Kenya Industrial Property Institute (KIPI).
From the above, it is clear that ABSA BANK LTD (SOUTH AFRICA) is a registered proprietor in Kenya of the trade mark ABSA under class 36 which is the class for Banking and Financial Services services. In the suit, Barclays Bank presented to the court the copies of the certificate of registration for use in legal proceedings.
ABSA Kenya Limited is a local company incorporated in 2006 offering cleaning and sanitation services to its clients for gain. It began to operate as a business in the year 2005 and registered the domain: www.absa.co.ke the same year. From the WhoIs information, it appears that ABSA stands for Absolute Sanitation. In 2007, the company registered ABSA (device) under the Trade Marks Act and was given trade mark number 61266 under class 16 as pictured below from the KIPI Journal.
In its suit, ABSA Kenya is seeking from the court, amongst others, prayers for permanent injunction to stop Barclays Bank from using its trade mark ABSA; it is also seeking a declaration that it is entitled to all the profits made by the Bank from the year 2012, when Barclays began to use the trade mark ABSA; and a declaration that ABSA Kenya is entitled to the difference in price of the Bank’s shares traded at Nairobi Securities Exchange from 2nd March 2018.
The decision by the court to reject ABSA Kenya’s application for interim relief was made solely on the basis that it failed to obtain from KIPI and present to the court the copies of the certificate of registration for use in legal proceedings. Thus the court declined to consider whether ABSA Kenya was likely to succeed in proving that it’s rights under the Trade Marks Act were infringed by Barclays Bank. Furthermore the court refused to consider whether ABSA Kenya had shown that it will suffer irreparable injury if the interim injunction is not granted. Finally the court stated that it did not have to consider whether the balance of convenience favoured the granting of injunction order since ABSA Kenya had failed to produce the required certificate of registration.