Tanzania: Court Throws out TCC''s Appeal in Cigarette War

Source from:  Daily News  06/20/2013

THE Court of Appeal has rejected the appeal lodged by the Tanzania Cigarette Company (TCC) Limited in a cigarette war with another local company, Mastermind Tobacco Tanzania Limited (Mastermind), over claims of infringement of Safari Graphic trademark.

In the appeal, the TCC, a renowned manufacturer, supplier and exporter of various tobacco products, was challenging a decision given on November 28, 2005, by the High Court's Commercial Division, which dismissed its case against Mastermind, for failure, among others, to prove the infringement of its mark.

But in their ruling, three appeals Justices Bernard Luanda, Sauda Mjasiri and William Mandia found "the appeal is incompetent and stroke it out with costs" after finding that it was time barred.

The justices upheld a ground of objection raised by counsel for Mastermind, Waziri Mchome, noting that after delivery of the judgment by the High Court, on November 28, 2005, the TCC lodged a notice of appeal to oppose the decision on December 7, 2005.

On the same day, they noted, the appellant company applied for typed copy of proceedings, judgment and decree and the Registrar of the Court issued a certificate of delay in filing the appeal from December 7, 2005 to March 22, 2006.

This means that, the justices said, the counting of limitation of days to lodge the appeal in question started on December 23, 2006. However, they further noted, the TCC lodged its appeal case on May 23, 2006, which was more than 60 days as required by the law.

"We subscribe to the position of the law that no provision of the rules can be used to save an appeal which is time barred," the justices concluded. In the appeal, the TCC had claimed that the trial judge erred in law and facts in holding that it had registered Safari Graphic trademark fraudulently and there was constructive fraud it had committed in registering the trademark.

Furthermore, the TCC had alleged that the trial judge erred in law and facts in holding that the trademark Safari Graphic was wrongly registered because there was already a similar trademark in the register while there was none and wrongly held that the company had imitated the trademark.

During trial of the case, the TCC had sought for orders retraining Mastermind from infringing the trademark by manufacturing, selling, distributing, importing or exporting the cigarettes styled by themselves as master of diverse varieties.

The company had also requested the court to direct Mastermind to destroy all manufactured or imported cigarettes in infringement of the TCC's Safari Graphic trademark. The TCC had claimed to have been the legal owner of the trademark in question having secured a registration certificate since September 6, 2004. Enditem