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

On the facts the court construed the distributorship/collaboration documents as vesting ownership of the relevant Hong Kong goodwill in the Plaintiffs (the 2nd Plaintiff including FERC), found the 1st Defendant continued use of the disputed names amounted to passing off and the 2nd Defendant procured/concurred in those acts so is personally liable for the passing off and malicious falsehood; most copyright claims failed for lack of credible priority/authorship except limited infringement of a photograph (P-11) where injunction and delivery up were ordered; the ENHANVOL trade mark registration was declared invalid/rectified as it was descriptive/generic and had no distinctive character as...

Citation
GUANGZHOU GREEN-ENHAN BIO-ENGINEERING CO LTD AND ANOTHER v. GREEN POWER HEALTH PRODUCTS INTERNATIONAL CO LTD AND OTHERS
Parties
1st Plaintiff: GUANGZHOU GREEN-ENHAN BIO-ENGINEERING CO. LTD; 2nd Plaintiff: 2nd Plaintiff (university in Guangzhou); 1st Defendant: 1st Defendant (unnamed trading company); 2nd Defendant: 2nd Defendant (unnamed individual, orthodontist); 3rd Defendant: 3rd Defendant (unnamed company, joint researcher)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 April 2005
Case Number
HCA4651/2002
Procedural Posture
Consolidated High Court Civil Actions (intellectual Property and Commercial Disputes) / Judgment (trial)
Outcome
Mixed judgment. Plaintiffs succeeded on ownership of Hong Kong goodwill and passing off re names (ENHANVOL/ENHANOID family) and on malicious falsehood; succeeded on limited copyright claim for plaintiff photograph P-11 (injunction/delivery up/nominal damages). Defendants succeeded on trade mark registration...
Legal Topics
Passing Off, Trade Mark Registration and Rectification, Copyright Authorship and Infringement, Restrictive Covenants in Distributorship Agreements, Malicious Falsehood, Director Personal Liability, Injunctive Relief
Source Language
EN
Intellectual Property Contract Tort Civil Procedure Trade Mark Law Defamation Passing Off Trade Mark Registration and Rectification +5 more

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Parties

GUANGZHOU GREEN-ENHAN BIO-ENGINEERING CO. LTD

1st Plaintiff

2nd Plaintiff (university in Guangzhou)

2nd Plaintiff

1st Defendant (unnamed trading company)

1st Defendant

2nd Defendant (unnamed individual, orthodontist)

2nd Defendant

3rd Defendant (unnamed company, joint researcher)

3rd Defendant

Procedural Posture

Consolidated High Court Civil Actions (intellectual Property and Commercial Disputes) / Judgment (trial)

Legal Issues

  1. 1 Who owned the Hong Kong goodwill in the ENHANVOL/ENHANOID family of products
  2. 2 Whether FERC was part of the 2nd Plaintiff or a separate legal entity
  3. 3 Construction and enforceability of the distributorship and collaboration agreements and post-termination restrictive covenants

Ratio Decidendi

On the facts the court construed the distributorship/collaboration documents as vesting ownership of the relevant Hong Kong goodwill in the Plaintiffs (the 2nd Plaintiff including FERC), found the 1st Defendant continued use of the disputed names amounted to passing off and the 2nd Defendant procured/concurred in those acts so is personally liable for the passing off and malicious falsehood; most copyright claims failed for lack of credible priority/authorship except limited infringement of a photograph (P-11) where injunction and delivery up were ordered; the ENHANVOL trade mark registration was declared invalid/rectified as it was descriptive/generic and had no distinctive character as...

Court Disposition

Mixed judgment. Plaintiffs succeeded on ownership of Hong Kong goodwill and passing off re names (ENHANVOL/ENHANOID family) and on malicious falsehood; succeeded on limited copyright claim for plaintiff photograph P-11 (injunction/delivery up/nominal damages). Defendants succeeded on trade mark registration...

Orders

  • Permanent injunction restraining 1st and 2nd Defendants from using the Plaintiffs\' trade names/marks ENHANVOL and ENHANOID and confusing packaging in Hong Kong (subject to detailed formulation to be settled)
  • Rectification of the Trade Marks Register: registration for ENHANVOL to be rectified in favour of the Plaintiffs