The Trustees of the Mukono Family Trustee and Mukonotronics (Pvt) Ltd v Karpeg Investments (Pvt) Ltd t/a Kadir & Sons and Others

The first plaintiff, Mukono Family Trust, claimed to have registered certain industrial designs for surge protectors (described as double or triple path transient protection devices) on 31 July 2008 under registration number ID 7/2008 in terms of the Industrial Designs Act [Chapter 26:02]. The certificate of registration was issued in the name of Mukono Family Trust for a period of 10 years. An electrical and electronics engineer, Lovemore Mukono, testified that he designed the industrial design and after reaching a commercial state of development, assigned it to Mukono Family Trust through a deed of assignment. The plaintiffs alleged that the defendants infringed their exclusive rights by making, importing, selling or offering for sale articles that copied the registered industrial design, including the metal box dimensions, electronic circuit diagram, and copyrighted words "The Power Surge Stops Here." Initially seven defendants were sued, but claims against all except the first defendant (Karpeg Investments) were withdrawn at various stages. It was common cause at the pre-trial conference that the industrial design was registered in the name of Mukono Family Trust.

• Whether a trust, as a non-juristic person, has legal capacity to apply for and hold registration of an industrial design in its own name under section 8 of the Industrial Designs Act [Chapter 26:02]
• Whether registration of an industrial design in the name of a trust is valid or a nullity
• Whether the defendants' goods infringed upon the plaintiffs' intellectual property rights
• Whether the plaintiffs were entitled to a permanent interdict and damages

The plaintiffs' claim was dismissed with costs on the higher scale of legal practitioner and client, including the costs of the Sheriff in storing the surge protectors impounded.

A trust, not being a juristic person or legal persona, lacks the legal capacity to apply for or hold registration of an industrial design in its own name under section 8 of the Industrial Designs Act [Chapter 26:02]. A trust is merely a legal relationship or arrangement for the administration of property, not a separate legal entity capable of owning property (corporeal or incorporeal) in its own right. Registration of an industrial design in the name of a trust (as opposed to the trustees) is a legal nullity and confers no enforceable rights against alleged infringers. The proper parties to apply for and hold such registration are the trustees, not the trust itself.

The court noted that while the case of Mafirambudzi Family Trust & Others v Trust Madzingira & Others involved an order for transfer of property to a trust, this did not detract from the legal position that a trust cannot own property in its own right. The court also observed that a trust would not have locus standi to sue except for the conferral of standing by Order 2A Rule 8 of the High Court Rules 1971 (as per Wilsa and others v Mandaza and others 2003 (1) SA ZLR 500H). The court further noted that the deed of assignment erroneously described the Mukono Family Trust as "a body corporate" and gave it the right to apply for registration "in its own name," which reflected a fundamental misunderstanding of the legal status of trusts.

This case is significant in Zimbabwean intellectual property law as it establishes that a trust, not being a juristic person, cannot validly hold registration of an industrial design in its own name under the Industrial Designs Act [Chapter 26:02]. The case clarifies that only trustees (as natural or juristic persons) can apply for and hold such registrations, not the trust entity itself. This has important implications for the registration of intellectual property rights and highlights the need for proper understanding of the legal status of trusts when registering proprietary rights. The judgment reinforces the fundamental principle that a trust is a legal relationship rather than a separate legal persona capable of holding rights in its own name, and that registration in the name of a trust is a legal nullity that confers no enforceable rights.