Ahmad Maarop JCA:

Brief Facts Of The Case

[1] This appeal concerns the rights to produce, distribute and sell in Malaysia the soft drinks - Kickapoo. The brief facts relevant to this appeal are these. Pursuant to a licence agreement dated 9 January 1996 (the RL agreement), the Monarch Company, Inc (TMCI), of 1100 Johnson Ferry Road, N.E Suite 460, Georgia 30342, the United States of America, as the owner of the trade marks "Kickapoo", and certain designs all for use in connection with the finished beverages, bases and concentrates, granted an exclusive licence to the respondent to prepare, sell and distribute in bottles and cans the finished beverages (the said beverages) in Malaysia and Singapore. Under the RL agreement, the respondent did not acquire any rights to the Kickapoo trade mark except the right to use in accordance with the agreement, and that all use thereof by the respondent shall enure to the benefit of TMCI. With effect from 9 July 1985, TMCI was registered under the Malaysian Trade Marks Act 1976 as the proprietor of the trade mark relating to the said beverages. An essential ingredient of the said beverages was the base concentrate which, under the RL agr