Close This website uses modern features that are not supported by your browser. Click here for more information.
Please upgrade to a modern browser to view this website properly. Google Chrome Mozilla Firefox Opera Safari
your legal news hub
Sub Menu
Search

Search

A A A

Seized counterfeit sanitary pads could benefit needy girls

Publish date: 08 August 2017
Issue Number: 68
Diary: A Matter of Justice
Category: A Matter of Justice

 

One of the problem issues facing millions of girls and women – access to menstrual pads – has become an increasingly significant issue for activists. But who would have thought, just a decade ago, that it would ever be a political issue, let alone a matter for the courts?

 

Yet that is exactly what is happening: in Botswana parliament has now decided that government will provide sanitary pads for all girls, a decision that follows Kenya’s June declaration that access to free menstrual protection was a “basic human right” that government would provide. 

 

In Uganda the issue is more fraught, however. During 2016 elections Yoweri Museveni adopted as one of their campaign promises that government would provide free sanitary pads for girls. Though he won the elections, nothing has come of the promise – the country can’t afford it, he says now.

 

Activists continue to fight the issue – one was even arrested, charged and jailed for more than a week – and children being taught at some schools to make reusable pads for themselves, and now the courts have found themselves involved as well.

 

Last month, Vision Impex (VI), a company that distributes the ‘Feathers’ brand of Chiinese-manufactured sanitary pads, brought a case against Ambrose Sansa and his company, Goldman Logistics Ltd. Though Sansa – listed as a board member of the Uganda Manufacturers Association in 2016 – and the company were given opportunities to defend the matter, no one appeared for them and the case continued in their absence.

 

VI showed it was the exclusive distributor of ‘Feathers’. The trademark of the pads was currently registered to VI and the company had ‘acquired substantial reputation’ for these pads. (In fact market research in 2014 showed ‘Feathers’ was the second most popular brand in Uganda.)

 

During 2013 Goldman Logistics imported a consignment of pads called ‘Featlhers’ for sale in Uganda. According to VI these were intended to ‘mislead the public’ who would think they were ‘Feathers’.

 

The consignment had been in the country barely a week before the Uganda revenue authority and the national bureau of standards seized the 2 049 cartons because they were suspected of being ‘counterfeit’ and using the bureau of standards mark without authorisation.

 

Now VI wanted a court ruling that Goldman Logistics was barred from infringing the ‘Feathers’ trademark, or selling the products. The company also wanted all the pads seized by the authorities to be destroyed.

 

A sample of the ‘real’ Feathers pads as well as of the ‘Featlhers’ variety were handed to Judge Flavia Senoga Anglin as exhibits. She carefully detailed both. Superficially they looked very similar. The names were almost the same, the colour was identical and the font used on the labelling was very similar to the VI product. The pads were also of the same size. But inside the box there was no company address. Like ‘Feathers’, the ‘Featlhers’ packaging displayed the logo of the bureau of standards, even though no authorisation had been given for the counterfeit pads to use the logo.

 

There was also a slight different in the catch phrase on the packaging: while Feathers used the words ‘Special care for special times’, the phrase on the counterfeit version ran: ‘Special care all the time’.

 

VI argued that the public would not notice the slight difference in the spelling of the name nor be able to differentiate between the two until they were actually used. At that stage the poor quality of the ‘Featlhers’ pads would become clear, according to VI director Pareku Arut. He told the court that sales of his company’s pads had fallen, with a loss of about R175 000 ($13 000 USD). Customers who had been disappointed by the fake pads would refuse to buy the genuine article, and VI feared that sales would be affected even further. There might also have been other consignments of the fake pads brought into Uganda that VI did not know about.

 

In her decision, Judge Anglin found that VI had exclusive use of its ‘Feathers’ trademark and that the pads in the consignment seized by the authorities was an infringement of this trademark.

 

She noted that the differences between the two pads were minor and ‘so deceptively similar’ that it was likely to ‘cause confusion’ even to ‘reasonable users’ of the pads. They were so similar in fact that this confusion was a likelihood and ‘not merely a possibility’.

 

What was to be done about the fake product? Judge Anglin found it was ‘only just and proper’ that a permanent bar should be issued by the court, preventing Sansa and Goldman Logistics from importing the fake pads, infringing the VI trademark, offering the pads for sale or in any way passing their goods off as those of VI.

 

VI had also asked that ‘all the offending goods’, confiscated by the authorities, be destroyed. The judge agreed to this order, and that any other of the fake pads already put out in the market that might be found, should also be destroyed. As to damages, VI had shown lost profits and other injury to their reputation, and Judge Anglin ordered the payment of R185 000 ($13 850 USD) in damages by Goldman Logistics to VI.

 

For everyone interested in the problems experienced by girls, especially the poor and rural girls of Uganda, another feature of this case will be significant.

 

It has been estimated that 3,75 million Ugandan girls have no access to proper ‘personal care’ products. Many of them use leaves or other unhygienic ways of coping with their flow. Without a way of managing their periods, they simply stop going to school during this time and eventually drop out. Typically, such girls stay at home, often simply sitting on the ground until their periods are over.

 

According to research commissioned by development agency, SNV, only 24% of girls eligible for high school actually enrolled and among the many reasons for the sharp drop-off of girls was non-availability of sanitary pads.

 

Aware of this problem, Judge Anglin commented at the end of her judgment that though she had given the go-ahead for destruction of the fake pads, they could instead, be ‘donated to girls’ schools where they are highly needed’. If VI agreed to do so, then the donations should be carried out ‘under the supervision’ of the revenue authorities, the bureau of standards and VI itself.

 

The import and sale of ‘counterfeit’ menstrual pads is an ongoing problem reported on in the Ugandan media, but this is the first reported judgment dealing with the issue.

Judgment

By Carmel Rickard