TSIT WING (HONG KONG) CO LTD AND OTHERS v. TWG TEA COMPANY PTE LTD AND ANOTHER

TSIT WING (HONG KONG) CO LTD AND OTHERS v. TWG TEA COMPANY PTE LTD AND ANOTHER

The court refused to determine the defendants' application and adjourned it sine die with liberty to restore because (1) the Undertaking was given to the Court of Appeal and the proper forum to determine whether a cross‑undertaking should be imposed is the Court of Appeal (raising functus officio and jurisdictional issues), (2) cross‑undertakings cannot be imposed retrospectively, and (3) it is premature and potentially academic to decide the issue before the trial adjudication.

Citation
TSIT WING (HONG KONG) CO LTD AND OTHERS v. TWG TEA COMPANY PTE LTD AND ANOTHER
Parties
1st Plaintiff: TSIT WING (HONG KONG) COMPANY LIMITED; 2nd Plaintiff: TSIT WING INTERNATIONAL COMPANY LIMITED; 3rd Plaintiff: TSIT WING COFFEE COMPANY, LIMITED; 4th Plaintiff: TW CAF LTD.; 1st Defendant: TWG TEA COMPANY PTE LTD; 2nd Defendant: TWG TEA (HK) COMPANY LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
14 May 2013
Case Number
HCA2210/2011
Procedural Posture
Passing Off and Trade Marks Infringement / Interlocutory Application; Adjourned Sine Die Before Trial
Outcome
Defendants' application refused; adjourned sine die with liberty to restore; plaintiffs awarded costs and certificate for two counsel.
Legal Topics
Interlocutory Injunction, Cross Undertaking as to Damages, Undertaking to Court, Functus Officio, Costs and Counsel Certificate
Source Language
EN
Intellectual Property Trade Marks Passing Off Civil Procedure Interlocutory Injunction Cross Undertaking as to Damages Undertaking to Court Functus Officio +1 more

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Parties

TSIT WING (HONG KONG) COMPANY LIMITED

1st Plaintiff

TSIT WING INTERNATIONAL COMPANY LIMITED

2nd Plaintiff

TSIT WING COFFEE COMPANY, LIMITED

3rd Plaintiff

TW CAF LTD.

4th Plaintiff

TWG TEA COMPANY PTE LTD

1st Defendant

TWG TEA (HK) COMPANY LIMITED

2nd Defendant

Procedural Posture

Passing Off and Trade Marks Infringement / Interlocutory Application; Adjourned Sine Die Before Trial

Legal Issues

  1. 1 Whether an express cross-undertaking as to damages can be imposed or implied in respect of an undertaking given to the Court of Appeal
  2. 2 Whether the High Court has jurisdiction to impose or confirm a cross-undertaking when the undertaking was given before the Court of Appeal (functus officio issue)
  3. 3 Whether it is premature or academic to determine the cross-undertaking issue before trial

Ratio Decidendi

The court refused to determine the defendants' application and adjourned it sine die with liberty to restore because (1) the Undertaking was given to the Court of Appeal and the proper forum to determine whether a cross‑undertaking should be imposed is the Court of Appeal (raising functus officio and jurisdictional issues), (2) cross‑undertakings cannot be imposed retrospectively, and (3) it is premature and potentially academic to decide the issue before the trial adjudication.

Court Disposition

Defendants' application refused; adjourned sine die with liberty to restore; plaintiffs awarded costs and certificate for two counsel.

Orders

  • Adjourn application sine die with liberty to restore defendants' summons dated 25 September 2012 concerning cross-undertaking as to damages.
  • Plaintiffs to have costs of the hearing on 30 April 2013.