LARK INTERNATIONAL HOLDINGS LTD AND ANOTHER v. LARK INTERNATIONAL DEVELOPMENT LTD AND OTHERS

LARK INTERNATIONAL HOLDINGS LTD AND ANOTHER v. LARK INTERNATIONAL DEVELOPMENT LTD AND OTHERS

Summary judgment was refused because there are major contested factual issues (existence and source of goodwill, the nature and intent behind the websites and alleged misrepresentations, and credibility issues) that require trial and cross-examination. The ex parte interim injunction was discharged and no interlocutory injunction granted because the balance of convenience favoured defendants: plaintiffs' IP rights in the plain word 'Lark' were not clearly established, the complained-of websites were no longer in use and may reflect inadvertence, plaintiffs delayed bringing the action and Turkish proceedings were ongoing, defendants would suffer irreparable harm from an injunction, and the...

Citation
LARK INTERNATIONAL HOLDINGS LTD AND ANOTHER v. LARK INTERNATIONAL DEVELOPMENT LTD AND OTHERS
Parties
1st Plaintiff: LARK INTERNATIONAL HOLDINGS LIMITED; 2nd Plaintiff: LARK INTERNATIONAL APPAREL LIMITED; 1st Defendant: LARK INTERNATIONAL DEVELOPMENT LIMITED; 2nd Defendant: AYCA BALKIR; 3rd Defendant: KAAN SUMER
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
9 December 2009
Case Number
HCA1289/2009
Procedural Posture
Civil Action for Passing Off and Trade Mark Infringement; Application for Summary Judgment and Interlocutory Injunction / Interlocutory Hearing and Judgment on Applications (summary Judgment and Interim Injunction)
Outcome
Summary judgment refused; interlocutory (ex parte) interim injunction discharged; defendants given unconditional leave to defend; directions for a speedy trial
Legal Topics
Passing Off, Trade Mark Infringement, Summary Judgment, Interlocutory Injunction, Goodwill, Misrepresentation, Comity, Status Quo
Source Language
EN
Intellectual Property Passing Off Trade Marks Injunctions Civil Procedure Trade Mark Infringement Summary Judgment Interlocutory Injunction +4 more

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Parties

LARK INTERNATIONAL HOLDINGS LIMITED

1st Plaintiff

LARK INTERNATIONAL APPAREL LIMITED

2nd Plaintiff

LARK INTERNATIONAL DEVELOPMENT LIMITED

1st Defendant

AYCA BALKIR

2nd Defendant

KAAN SUMER

3rd Defendant

Procedural Posture

Civil Action for Passing Off and Trade Mark Infringement; Application for Summary Judgment and Interlocutory Injunction / Interlocutory Hearing and Judgment on Applications (summary Judgment and Interim Injunction)

Legal Issues

  1. 1 Whether the plaintiffs enjoy goodwill in relation to promotional items
  2. 2 Whether the defendants made a misrepresentation leading the public to believe their goods/business were those of the plaintiffs
  3. 3 Whether the plaintiffs are likely to suffer damage from any misrepresentation

Ratio Decidendi

Summary judgment was refused because there are major contested factual issues (existence and source of goodwill, the nature and intent behind the websites and alleged misrepresentations, and credibility issues) that require trial and cross-examination. The ex parte interim injunction was discharged and no interlocutory injunction granted because the balance of convenience favoured defendants: plaintiffs' IP rights in the plain word 'Lark' were not clearly established, the complained-of websites were no longer in use and may reflect inadvertence, plaintiffs delayed bringing the action and Turkish proceedings were ongoing, defendants would suffer irreparable harm from an injunction, and the...

Court Disposition

Summary judgment refused; interlocutory (ex parte) interim injunction discharged; defendants given unconditional leave to defend; directions for a speedy trial

Orders

  • Defendants granted unconditional leave to defend
  • Ex parte interim injunction previously granted to the plaintiffs discharged