TCE SPORTS SDN BHD BULLZEN SPORT (MALAYSIA) SDN BHD

TCE SPORTS SDN BHD BULLZEN SPORT (MALAYSIA) SDN BHD

The appeal was allowed because the plaintiff adduced uncontested sales revenue demonstrating goodwill; the court, applying the correct principle of comparing the entirety of the product get-up, found striking overall similarities between the plaintiff's and defendant's packaging (reinforced by the defendant's own opposition submissions) amounting to misrepresentation; given the similarity of the products, damage was properly inferred. The High Court judgment was therefore set aside and relief granted to the plaintiff.

Citation
P-02(IPCv)(W)-483-03/2023 (Mahkamah Rayuan)
Parties
Appellant / Plaintiff: TCE SPORTS SDN BHD; Respondent / Defendant: BULLZEN SPORT (MALAYSIA) SDN BHD
Court
IPCv
Jurisdiction
Malaysia
Judgment Date
12 December 2024
Case Number
P-02(IPCv)(W)-483-03/2023 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (passing Off) / Court of Appeal Judgment (allowed Appeal)
Outcome
Appeal allowed; High Court judgment set aside; judgment entered for appellant in respect of prayers A to J; inquiry ordered as to damages; interest and costs awarded.
Legal Topics
Goodwill, Misrepresentation, Damage (inference of Loss), Get Up / Trade Dress Comparison, Trademark Opposition
Source Language
Malay/English
Intellectual Property Passing Off Trade Marks Civil Torts Goodwill Misrepresentation Damage (inference of Loss) Get Up / Trade Dress Comparison +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 5 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

TCE SPORTS SDN BHD

Appellant / Plaintiff

BULLZEN SPORT (MALAYSIA) SDN BHD

Respondent / Defendant

Procedural Posture

Civil Appeal (passing Off) / Court of Appeal Judgment (allowed Appeal)

Legal Issues

  1. 1 Whether the plaintiff established goodwill in the SOL product line
  2. 2 Whether the defendant's mark and product get-up constituted a misrepresentation amounting to passing off
  3. 3 Whether damage to the plaintiff was proved or may be inferred

Ratio Decidendi

The appeal was allowed because the plaintiff adduced uncontested sales revenue demonstrating goodwill; the court, applying the correct principle of comparing the entirety of the product get-up, found striking overall similarities between the plaintiff's and defendant's packaging (reinforced by the defendant's own opposition submissions) amounting to misrepresentation; given the similarity of the products, damage was properly inferred. The High Court judgment was therefore set aside and relief granted to the plaintiff.

Court Disposition

Appeal allowed; High Court judgment set aside; judgment entered for appellant in respect of prayers A to J; inquiry ordered as to damages; interest and costs awarded.

Orders

  • Prayers A to J in the statement of claim allowed
  • Directed inquiry as to damages payable by the defendant to the plaintiff