Hasnah Mohammed Hashim FCJ:

Introduction

[1] This appeal concerns an alleged infringement of a trademark. The crux of the issue in this appeal is whether honest concurrent rights under the Trade Marks Act 1976 (" TMA ") and variation of a registered trade mark under the Trade Marks Act are relevant considerations that need to be taken into account in an action for trade mark infringement and/or passing-off.

[2] On 22 October 2019, this court granted the plaintiff leave to appeal against the decision of the court of Appeal in respect of these two questions of law:

Question 1

Is honest concurrent rights under the Trade Mark Registration system a relevant consideration in an action for trade mark infringement and/ or passing-off where the trade mark of the defendant is not registered?; and

Question 2

Is variation of a registered trade mark a remedy that a plaintiff should seek as an option before commencing an action for trade mark infringement and/or passing-off even if the trade mark of the defendant is not registered?

[3] For the purpose of this judgment, the parties will be referred to as they were in the High court, namely the appellant as the plaintiff and the respondent as th