JUDGMENT

Low Hop Bing J:

Appeal

[1] After hearing nine witnesses and submissions, the learned judge of the Kuala Lumpur High Court had on 10 September 2004 found for the plaintiff and ordered the defendant to pay damages in the sum of RM4,831,450 with interest and costs, and dismissed the defendant's counterclaim with costs.

[2] The defendant has appealed against the whole of the aforesaid decision.

[3] On 8 January 2007, after hearing submissions, we had unanimously dismissed the defendant's appeal. We now give our grounds of judgment.

[4] The parties are referred to in the same capacities as in the High Court.

Plaintiff's Claim

[5] The plaintiff instituted a claim against the defendant for infringement of the plaintiff's trade marks which were registered as "PINHOLE", "SAKURA" and 'FISSURED" (collectively, "the registered trade marks") and also a claim in common law for the tort of passing off of the trade mark known as "LEOPARD" (collectively, all these four trade marks are referred to as "the four trade marks").

[6] The four trade marks were used in and for the plaintiff's products commonly referred to as Gypsum Ceiling Boards ("GCB").

Defence And Counterclaim

[7] The defendant's defence