KABUSHIKI KAISHA YAKULT HONSHA AND OTHERS v. YAKUDO GROUP HOLDINGS LTD. AND ANOTHER

KABUSHIKI KAISHA YAKULT HONSHA AND OTHERS v. YAKUDO GROUP HOLDINGS LTD. AND ANOTHER

Passing off is not within Section 33A(1)(a); the defendants failed to discharge the onus of showing a jury trial would produce a more just result given the nature of the issues (secondary facts, mixed questions of law and fact, likely complexity and risk of confusion and prolongation); accordingly the application...

Source-derived case information.

Citation
KABUSHIKI KAISHA YAKULT HONSHA AND OTHERS v. YAKUDO GROUP HOLDINGS LTD. AND ANOTHER
Parties
Plaintiff: Plaintiffs; Defendant: Defendants
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 November 2002
Case Number
HCA2409/2002
Procedural Posture
Passing Off and Trade Mark Infringement / Pre Trial Application for Trial by Jury; Reasons for Decision (handed Down 28 November 2002)
Outcome
Application for trial by jury dismissed; action to be tried by judge alone; leave granted for publication of Ruling dated 6 September 2002.
Legal Topics
Trial by Jury, Mode of Trial, Passing Off, Trade Mark Infringement, Goodwill, Confusion, Publication of Ruling
Source Language
en
Intellectual Property Civil Procedure Trial by Jury Mode of Trial Passing Off Trade Mark Infringement Goodwill Confusion +1 more

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Summary, issues, holding and outcome

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Parties

Plaintiffs

Plaintiff

Defendants

Defendant

Procedural Posture

Passing Off and Trade Mark Infringement / Pre Trial Application for Trial by Jury; Reasons for Decision (handed Down 28 November 2002)

Legal Issues

  1. 1 Whether the action of passing off falls within Section 33A(1)(a) as akin to slander (slander of title)
  2. 2 Whether the factual issues (existence of goodwill, confusing similarity between 'Yakudo' and 'Yakult', split of goodwill from Taiwan) require a jury to achieve a more just result
  3. 3 Whether the complexities and mixed questions of law and fact make a jury trial inappropriate

Ratio Decidendi

Passing off is not within Section 33A(1)(a); the defendants failed to discharge the onus of showing a jury trial would produce a more just result given the nature of the issues (secondary facts, mixed questions of law and fact, likely complexity and risk of confusion and prolongation); accordingly the application for trial by jury is refused and the action will be tried by judge alone; leave to publish the Ruling of 6 September 2002 is granted.

Court Disposition

Application for trial by jury dismissed; action to be tried by judge alone; leave granted for publication of Ruling dated 6 September 2002.

Orders

  • Application by Defendants for trial by jury dismissed.
  • The action shall be tried before a judge alone.