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HIGH COURT MALAYA KUALA LUMPUR
TOKAI CORPORATION – Appellant
Versus
DKSH MALAYSIA SDN BHD (ENCL 1) – Respondent
Key Points: - Plaintiff was not a "person aggrieved" under sections 45(1)(a) and 46(1) TMA; the court dismissed prayers for rectification/removal and declaratory relief. (!) (!) (!) - The 3 Assignments were held valid under s 55 TMA; Plaintiff failed to prove invalidity or absence of goodwill. (!) (!) (!) (!) - Court exercised discretion not to expunge despite potential non-use, citing estoppel, delay, and other equitable considerations; declined to grant declarations. (!) (!) (!) (!)
| Table of Content |
|---|
| 1. court examines procedural matters in ownership disputes. (Para 1 , 2) |
| 2. evidence regarding trademark usage and validity is crucial. (Para 3 , 4 , 5 , 6) |
| 3. application and interpretation of statutory provisions (Para 7 , 8) |
| 4. overall court decision and reason for dismissal (Para 9 , 10) |
(1) whether the plaintiff company (Plaintiff) can rely on 2 statutory declarations (SD) to support This OS;
(2) whether the Plaintiff is the legal, Common Law and/or beneficial owner of the registered trade mark bearing registration no. 85002490 for disposable gas lighters and smokers' articles in Class 34 [annexed as Annexure A to this judgment (Registered Trade Mark)];
(3) whether the following 3 assignments (3 Assignments) of the Registered Trade Mark are valid under, among others, s 55 of the Trade Marks Act 1976 ( TMA ):-
(a) the first assignment dated 27 March 2003 of the Registered Trade Mark (1st Assignment) from Tokai Cigarlite Industries Sdn Bhd (Tokai Cigarlite) to Fumakilla Malaysia Bhd (Fumakilla);
(b) the second assignment dated 6 June 2007 of the Registered Trade Mark (2nd Assignmen
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