EMPEROR EXPRESS (HK) LTD v. WELL TIME TOURS LTD AND ANOTHER

EMPEROR EXPRESS (HK) LTD v. WELL TIME TOURS LTD AND ANOTHER

The four Chinese characters were held to be purely descriptive in meaning "U.S.A. Canada Tours", placing a heavy onus on the plaintiff to prove secondary meaning and passing‑off; nevertheless there was a serious question to be tried and, on balance of convenience, the interim injunction should be continued pending trial.

Citation
EMPEROR EXPRESS (HK) LTD v. WELL TIME TOURS LTD AND ANOTHER
Parties
Plaintiff: Emperor Express (HK) Ltd.; 1st Defendant: Well Time Tours Ltd.; 2nd Defendant: Philip Wong
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 June 1981
Case Number
HCA3856/1981
Procedural Posture
Passing Off / Interim Injunction Application / Interlocutory Chambers Hearing (application to Discharge Interim Injunction)
Outcome
Interim injunction continued; costs reserved; matter certified fit for early trial.
Legal Topics
Passing Off, Interim Injunction, Secondary Meaning, Descriptive Marks
Source Language
EN
Intellectual Property Equity Trade and Commerce Passing Off Interim Injunction Secondary Meaning Descriptive Marks

Case Brief

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Parties

Emperor Express (HK) Ltd.

Plaintiff

Well Time Tours Ltd.

1st Defendant

Philip Wong

2nd Defendant

Procedural Posture

Passing Off / Interim Injunction Application / Interlocutory Chambers Hearing (application to Discharge Interim Injunction)

Legal Issues

  1. 1 Whether the four Chinese characters "Mei Ka Yau Chung" have acquired a secondary meaning such that their use by the defendants would constitute passing‑off
  2. 2 Whether the interim injunction granted ex parte should be continued or discharged
  3. 3 Balance of convenience between the parties pending trial

Ratio Decidendi

The four Chinese characters were held to be purely descriptive in meaning "U.S.A. Canada Tours", placing a heavy onus on the plaintiff to prove secondary meaning and passing‑off; nevertheless there was a serious question to be tried and, on balance of convenience, the interim injunction should be continued pending trial.

Court Disposition

Interim injunction continued; costs reserved; matter certified fit for early trial.

Orders

  • Continue interim injunction restraining defendants from using the specified four Chinese characters in the particular order complained of pending trial.
  • Costs of this application reserved.