ALAN TAM WING LUN AND OTHERS v. TAM KWOK HUNG t/a HANG MEI RECORD CO. AND ANOTHER

ALAN TAM WING LUN AND OTHERS v. TAM KWOK HUNG t/a HANG MEI RECORD CO. AND ANOTHER

Passing off was established and damage to goodwill is presumed; plaintiffs failed to prove quantifiable loss of profit so no award for profit was made; account of profits is separate and not recoverable as damages; considering plaintiff's high reputation, deliberate conduct by defendants and scale of circulation, a fair and temperate award for injury to reputation is HK$125,000 plus interest and costs.

Citation
ALAN TAM WING LUN AND OTHERS v. TAM KWOK HUNG t/a HANG MEI RECORD CO. AND ANOTHER
Parties
1st Plaintiff: ALAN TAM WING LUN; 2nd Plaintiff: MAGIC KEY INTERNATIONAL LIMITED; 3rd Plaintiff: POLYGRAM RECORDS LIMITED; 4th Plaintiff: ENTERTAINMENT IMPACT LIMITED; 1st Defendant: TAM KWOK HUNG trading as HANG MEI RECORD COMPANY; 2nd Defendant: KORMAN RECORD TRADING COMPANY (sued as a firm)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 June 1991
Case Number
HCA5354/1990
Procedural Posture
Passing Off / Assessment of Damages (judgment)
Outcome
Judgment for Plaintiffs; damages awarded for injury to reputation
Legal Topics
Goodwill, Damages, Injunctions, Anton Piller Order, Account of Profits
Source Language
EN
Intellectual Property Passing Off Civil Remedies Goodwill Damages Injunctions Anton Piller Order Account of Profits

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Parties

ALAN TAM WING LUN

1st Plaintiff

MAGIC KEY INTERNATIONAL LIMITED

2nd Plaintiff

POLYGRAM RECORDS LIMITED

3rd Plaintiff

ENTERTAINMENT IMPACT LIMITED

4th Plaintiff

TAM KWOK HUNG trading as HANG MEI RECORD COMPANY

1st Defendant

KORMAN RECORD TRADING COMPANY (sued as a firm)

2nd Defendant

Procedural Posture

Passing Off / Assessment of Damages (judgment)

Legal Issues

  1. 1 Whether plaintiff must prove actual loss of goodwill or sales to recover damages for passing off
  2. 2 Proper heads of damages in passing off: injury to goodwill versus loss of profits
  3. 3 Whether defendant's profits may be included in an award for damages or require an account of profits

Ratio Decidendi

Passing off was established and damage to goodwill is presumed; plaintiffs failed to prove quantifiable loss of profit so no award for profit was made; account of profits is separate and not recoverable as damages; considering plaintiff's high reputation, deliberate conduct by defendants and scale of circulation, a fair and temperate award for injury to reputation is HK$125,000 plus interest and costs.

Court Disposition

Judgment for Plaintiffs; damages awarded for injury to reputation

Orders

  • Damages assessed at HK$125,000.00 to be paid by the Defendants jointly and severally to the Plaintiffs
  • Interest at 2% per annum from date of writ to date of judgment and thereafter at judgment rate