A Second Bite At The (call) Cherry, In Thermos Hong Kong Limited V Doshi Ironmongers Limited – Trademark
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In Thermos Hong Kong Limited v Doshi Ironmongers Limited (Civil Appeal (Application) E013 of 2021)  KECA 544 (KLR), the Kenya Court of Appeal had to determine whether a party had a second right of appeal against a High Court appellate decision in a trademark dispute.
To recap, this matter was first heard by the Deputy Registrar (“the Registrar”) who agreed to restore the THERMOS mark assigned to Thermos Hong King Limited (“Thermos”). On the strength of this restoration, Thermos opposes the application for registration of the THERMOS mark in the name of Doshi Ironmongers Limited (“Doshi”). Doshi defended the candidacy but was unsuccessful.
Doshi then appealed to the High Court which upheld the appeal and concluded that after the Registrar issued his decision he became official function and that the matter must then have been considered by a court. Thermos appealed this decision to the Court of Appeal.
Doshi objected to filing the appeal to the Court of Appeal on the grounds that Thermos had no right to appeal to the Court of Appeal under Section 21(6) of the Trademarks and Rule 117 of the Trademark Rules. Section 21(6) of the Trademarks Act provides that the Registrar’s decision on opposition to the registration of a mark”will be subject to appeal in courtDoshi argued that “the court” in the present case referred to the High Court and not the Court of Appeal and that Thermos had no second right of appeal to the Court of Appeal.
In response, Thermos argued that its right of appeal fell under Section 72 of the Civil Procedure Act and cited a case in which that court allowed a second appeal to be filed in a dispute over mark on the basis of the same article. She further argued that the Trade Marks Act did not expressly exclude the possibility of a second appeal to the High Court against a decision made by the Registrar.
The Court of Appeal agreed with Thermos that there was no express provision in the Trade Marks Act preventing a second appeal from being lodged against the High Court decision. It further held that there was no evidence to suggest that the legislature intended section 21(6) of the Trade Marks Act to make the High Court the court of last resort in matters of trade mark registration. brands. It found that Thermos had demonstrated that its right to appeal was well founded in law. The motion was dismissed with costs.
The decision confirms that trademark appeal decisions of the High Court of Kenya can be appealed to the Court of Appeal. Not only does the Court have jurisdiction to hear such a case, but there is a statutory right of appeal.
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