The Scenario
You’ve spent years and real money building a brand name. Then a competitor starts selling a near-identical product under a deceptively similar name, banking on the fact that customers will assume it’s yours. You never gave permission. Does the law actually protect you, or is a registered trademark just a piece of paper?
The Legal Question
When a competitor adopts a name or mark that closely resembles a registered trademark on similar goods, does the trademark owner have real, enforceable recourse and how quickly can the courts act?
What Does Kenyan Law Say?
The Trade Marks Act (Cap 506) gives the proprietor of a registered mark the exclusive right to use it for the goods or services it covers. Anyone who uses an identical or confusingly similar mark without consent, in a way likely to deceive or cause confusion, infringes that right and may also be liable under the common-law tort of passing off, which protects the reputation and goodwill attached to a brand.
Kenyan courts have consistently held that a claimant does not need to prove that customers were actually deceived only that confusion is likely. That lower threshold matters, because it means brand owners can often secure urgent injunctive relief before real damage to sales and reputation has piled up.
What Have Kenyan Courts Said?
Two recent rulings show how active Kenyan courts have been on this issue.
Unga Limited v Daiga Millers (Commercial Case E006 of 2025) [2026] KEHC 320 (KLR), High Court at Nanyuki, 22 January 2026. Unga Limited, the proprietor of the registered “Hodari” maize meal trademark across Kenya, Tanzania, Zanzibar and Uganda, discovered in late 2024 that a Nanyuki-based miller, Daiga Millers, was producing and selling its own maize meal under the same “Hodari” name without authorization. Unga argued this diluted its market share and eroded goodwill it had built over years of advertising. The High Court agreed that using an identical name on identical products created a real likelihood of confusion, and granted Unga a temporary injunction stopping Daiga Millers from importing, packaging, marketing, or selling any product bearing the Hodari name pending full trial confirming, again, that actual proof of deceived customers is not required at this stage.
Ezeetile Kenya Ltd v Dg Services Limited (Civil Suit E034 of 2023) [2025] KEHC 12098 (KLR), High Court at Mombasa, 7 July 2025. Ezeetile, registered proprietor of the “TILEFIX” trademark for tile adhesive since 2020, sued a competitor for packaging its own tile adhesive in a strikingly similar 25kg bag design bearing the same name. The court found the defendant had infringed the mark and passed its goods off as Ezeetile’s, and despite no firm evidence of exact sales lost awarded a global sum of KES 3,000,000 in general damages plus a permanent injunction, on the reasoning that the defendant “must have benefited financially by riding on the plaintiff’s trademark and goodwill in the market.”
Together, these rulings confirm that Kenyan courts are willing to move quickly through interim injunctions and to award real damages even without precise financial proof, once infringement and a likelihood of confusion are shown. The finer detail of how courts assess “confusing similarity” between two marks, and what evidence of goodwill is enough to support a damages claim, is best walked through with an advocate against your specific brand and product category, rather than summarized in full here.
Key Factors Courts Will Weigh
- Whether the trademark was validly registered, and for which goods or services
- The degree of similarity between the marks, packaging, or names, assessed as a whole
- Whether confusion among ordinary consumers is likely not proof that anyone was actually fooled
- Evidence of goodwill and reputation genuinely built up around the mark
- Whether the later party’s use appears deliberate or opportunistic
- The urgency and irreparability of harm, where interim relief is sought
The Court’s Likely Approach
Kenyan courts have shown they will act decisively often at the interim stage to stop the use of a confusingly similar mark once a registered proprietor makes out a credible case, without waiting for a full trial or hard proof of lost sales. At the same time, damages awards depend heavily on what evidence of loss and goodwill is actually placed before the court. Because both the strength of your registration and the specifics of the alleged copying shape how a court will respond, the general principle only goes so far the details of your situation will determine your options.
Key Takeaway
Kenyan courts have, in the last year alone, shown a clear willingness to protect trademark integrity stopping infringing sales quickly and awarding damages even where exact financial loss is hard to quantify. But that protection starts with your own registration and evidence: acting early, registering promptly, and documenting your brand’s reputation puts you in a far stronger position if a dispute arises. If you’re facing or considering a trademark dispute, it’s worth discussing the specifics with an advocate.
This article is for general information only and does not constitute legal advice. Trademark disputes are highly fact-specific. Otwal & Partners LLP can advise on how these principles apply to your particular circumstances.