GUANGZHOU GREEN-ENHAN BIO-ENGINEERING CO LTD AND ANOTHER v. GREEN POWER HEALTH PRODUCTS INTERNATIONAL CO LTD AND OTHERS

GUANGZHOU GREEN-ENHAN BIO-ENGINEERING CO LTD AND ANOTHER v. GREEN POWER HEALTH PRODUCTS INTERNATIONAL CO LTD AND OTHERS

Court found the distributorship and collaboration agreements and commercial matrix evidenced an implied allocation of future goodwill to the Plaintiffs (including FERC as part of the 2nd Plaintiff); Defendants unlawfully exploited those names and produced packages after the breakdown; GMP advertisements published by the 1st Defendant were false and malicious as to Plaintiffs' role and origin and caused likely pecuniary damage; the contested trade mark application for the descriptive expression (Germination Activation) was non-distinctive and not registrable; the P-11 photograph copyright was infringed (limited and awarded nominal damages); the 2nd Defendant was personally liable for...

Citation
GUANGZHOU GREEN-ENHAN BIO-ENGINEERING CO LTD AND ANOTHER v. GREEN POWER HEALTH PRODUCTS INTERNATIONAL CO LTD AND OTHERS
Parties
Plaintiff 1st: Guangzhou Green-Enhan Bio-Engineering Co. Ltd; Plaintiff 2nd: 2nd Plaintiff (university in Guangzhou); Defendant 1st: 1st Defendant (distributor company); Defendant 2nd: 2nd Defendant; Defendant 3rd: 3rd Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 April 2005
Case Number
HCMP74/2004
Procedural Posture
Consolidated High Court Civil Actions (hca 4651/2002; HCA 2802/2003; HCMP 74/2004) Court of First Instance / Judgment Following Full Trial (judgment Delivered 8 April 2005)
Outcome
Judgment for Plaintiffs in part and for Defendants in part: Plaintiffs succeed on passing off (ownership of names/goodwill), malicious falsehood and limited copyright infringement (P-11) and obtain rectification of trade mark register; defendants' counterclaim re trade mark registration of the descriptive expression...
Legal Topics
Passing Off, Trade Mark Registration/rectification, Copyright Infringement, Breach of Distributorship Agreement, Malicious Falsehood, Injunctions, Personal Liability of Directors, Damages, Delivery Up
Source Language
EN
Intellectual Property Contract Tort Civil Remedies Passing Off Trade Mark Registration/rectification Copyright Infringement Breach of Distributorship Agreement +5 more

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Parties

Guangzhou Green-Enhan Bio-Engineering Co. Ltd

Plaintiff 1st

2nd Plaintiff (university in Guangzhou)

Plaintiff 2nd

1st Defendant (distributor company)

Defendant 1st

2nd Defendant

Defendant 2nd

3rd Defendant

Defendant 3rd

Procedural Posture

Consolidated High Court Civil Actions (hca 4651/2002; HCA 2802/2003; HCMP 74/2004) Court of First Instance / Judgment Following Full Trial (judgment Delivered 8 April 2005)

Legal Issues

  1. 1 Who owned the goodwill in Hong Kong for the ENHANVOL/ENHANTEA/ENHANOID family of products
  2. 2 Whether FERC was part of the 2nd Plaintiff or a separate legal entity
  3. 3 Construction and effect of the distributorship and collaboration agreements (including post-termination restraints)

Ratio Decidendi

Court found the distributorship and collaboration agreements and commercial matrix evidenced an implied allocation of future goodwill to the Plaintiffs (including FERC as part of the 2nd Plaintiff); Defendants unlawfully exploited those names and produced packages after the breakdown; GMP advertisements published by the 1st Defendant were false and malicious as to Plaintiffs' role and origin and caused likely pecuniary damage; the contested trade mark application for the descriptive expression (Germination Activation) was non-distinctive and not registrable; the P-11 photograph copyright was infringed (limited and awarded nominal damages); the 2nd Defendant was personally liable for...

Court Disposition

Judgment for Plaintiffs in part and for Defendants in part: Plaintiffs succeed on passing off (ownership of names/goodwill), malicious falsehood and limited copyright infringement (P-11) and obtain rectification of trade mark register; defendants' counterclaim re trade mark registration of the descriptive expression...

Orders

  • Permanent injunctions restraining 1st and 2nd Defendants from using the plaintiffs' protected names/marks and from publishing the GMP advertisement as pleaded
  • Order for rectification of the Register of Trade Marks to reflect plaintiffs as owner of ENHANVOL