criminal trial on intellectual property involving the State against one Ebrima
Youray resumed on Tuesday, 19th of June 2018, before Justice Oleidi Uko Uduma
at the High Court in Banjul.
The accused, Ebrima Touray is charged with two counts of trade name infringement and acts of unfair competition contrary to Sections 35 (3) and 36 (2) (a) of the Industrial Property Act Cap 95:01 Volume 15, Revised Laws of The Gambia, 2009, and punishable under Section 43 (4) of the Industrial Property (Amendment ) Act, 2015.
Count one disclosed that the accused person, Ebrima Touray, proprietor of EMT Enterprise, on or about the 12th day of September, 2017 in Serekunda Market or in diverse places in the Republic of The Gambia engraved the mark “Bathnat” on his wheelbarrows which mark is confusingly similar to the trade name of a competitor “Batimat” also in business of selling wheelbarrows which act is likely to mislead the public.
The second count disclosed that the accused person, Ebrima Touray on the same date and place engraved the mark “Bathnat” on his wheelbarrows to create confusion with the Batmat.
Sgt. Fatou Jallow, the second prosecution witness in her testimony told the court that on the 12th of September, 2017, whilst she was on duties at the Serious Crime Unit at the Police Headquarters in Banjul she received a complain of an alleged infringement of trade name.
The witness testified that she was assigned together with Assan Baldeh and Demba Mbaye to investigate the complaint.
The witness further testified that after registering the complaint into the station diary, she wrote to the Attorney General’s Chambers requesting to confirm if Batimat is a registered trade name to which they replied and confirmed same.
However, State Counsel A. Colley applied to tender the certificate of Business registration of Batmat but the defence counsel, Awjum G. Achigbue raised objection and was subsequently rejected by the court and marked rejected.
Continuing her evidence in chief, Sgt. Fatou Jallow testified that the investigating team further requested for a search warrant from the court which was issued and they went to the accused person’s shop and conducted a search and 17 wheelbarrows were recovered.
The witness disclosed that the wheelbarrows had the resemblance of Batimat wheelbarrows in terms of the colours, sizes and the handles with the inscription of Bahnat on them.
The witness further disclosed that the wheelbarrows were taken to the complainant shop at Kanifing for safekeeping pending further investigations.
The witness told the court that the Complainant shop was about 100 metres away from the accused person’s shop at Kanifing.
Responding to questions posed to her by defence counsel A. Achigbue, the witness told the court that the accused person wasn’t in his shop when they went to conduct the search.
The witness admitted that they recovered the 17 wheelbarrows from the accused person’s shop at Serekunda market and not at Kanifing as she initially said during her evidence in chief.
She clarified that the Serekunda Shop was the accused person’s second shop.
When asked who the police received the complaint from, the witness replied Amie Bensouda.
Asked if she would be surprise to hear that Amie Bensouda has written to the IGP for the withdrawal of the matter?
The witness replied in the negative.Hearing continues on the 25th June and 3rd July, 2018.