You’ve probably seen it before. Two businesses, similar trade name, offering the same
product or service,targeting the same market. One has been around longer, the other just
“happened” to pick the same name. To the average customer, the distinction is blurry,
probably confusing and that’s exactly where the legal trap begins.
In law, this is called passing off. And no, you don’t need a registered trademark for it to
apply.
Passing off occurs where one business uses a name, brand, or get-up so similar to another,
that customers are likely to be misled into thinking the two are connected. What the law
protects here is goodwill and the reputation a business has built over time.
The High Court addresses this in Johari School Limited v Wambugu t/a Johari School (Civil
Case No. 191 of 2018) [2026] KEHC 293 (KLR). In this case, the Plaintiff registered and
operated as a school since the year 2011, in the name Johari School. The Defendant also
registered a business name ‘Johari Daycare and Kindergarten’ in 2014 and later on
proceeded to request for its registration at the Ministry of Education as ‘Johari School ‘and
then ‘C.I Johari School’.
These two schools were operating under a strikingly similar name “Johari”, in the same
sector, targeting the same market. The Court had little difficulty finding that the ordinary
person may conclude that the two entities are related or the same. This created confusion,
whether intended or not. Once confusion exists, liability follows.
The court was particular that; “The Plaintiff has established that it had goodwill and
reputation as it had registered a company and operated a school under the title ‘Johari
School’ since 2011. It also illustrated that the Defendant later on established a school with
a similar name and thereby passed off as if it were the Plaintiff school. It is plausible that
the Plaintiff suffered damages and or losses as a result of the Defendant’s actions of
passing off. In passing off cases, however, the true basis of the action is that the passing
off by the Defendant of his goods as the goods of the Plaintiff injures the right of property
in the Plaintiff, that right of property being his right to the goodwill of his business. The
law assumes, or presumes, that, if the goodwill of a man’s business has been interfered
with by the passing off of goods, damages results therefrom.”
The key takeaway? Using the same trade name for the same product as that of an existing
entity is rarely accidental in the eyes of the law. If customers are likely to think your
business is connected to someone else’s, you may already be in dangerous territory. You
might actually be liable to pay the other business the cost incurred by it. You are free to
compete, but not by riding on another business’s name & goodwill. A familiar name may
attract customers, but it can also attract injunctions, damages, and costly litigation.
So before settling on that “perfect” trade name, it’s worth asking: Is it unique, or just legally
risky?
