Trading in goods must not only be honest but also not be, even unintentionally, unfair. That is the basic principle that guides the interest of all those who may wish to buy or sell goods- Onguto J in Harleys Limited v Sun-Pharma East Africa Limited  eklr
The High Court of Kenya has yet again made a preliminary finding in a trade mark infringement and passing off action, this time in the realm of pharmaceuticals. The parties- Harleys Limited and Sun-Pharma East Africa Ltd are proprietors of the trade marks ‘Letrol’ and ‘Letroz’ respectively both used in the treatment of breast cancer. In a typical concurrent use of trademarks case, the Plaintiff, Harleys Limited alleges that the Defendant’s Letroz is so similar to its ‘Letrol’ as to cause confusion to the average consumer and that the name and general packaging of ‘Letroz’ is aimed to pass off as ‘Letrol’. The Plaintiff sought a temporary injunction restraining the Defendant from selling their drug under the name ‘Letroz’.
The Defendant denied any wrong doing, contending that the name ‘Letroz’ had been used openly and extensively since 2009 even before the mark was registered in 2014. According to the Defendant, there was a lawful concurrent use of both marks, which is allowed under section 15 of the Trade Marks Act and such concurrent use led to the respective marks of ‘Letrol’ and ‘Letroz’ to be associated with the Plaintiff and the Defendant respectively.