Zabariah Mohd Yusof FCJ:

Introduction

[1] The appellant, Ortus Expert White Sdn Bhd was granted leave to appeal to the Federal Court on the following questions of law:

(a) Whether in a trade mark infringement and passing off action, the Court ought to consider the disclaimed words in juxtaposition or in combination with the essential features in the registered trade mark for the purpose of deciding whether there is a likelihood of confusion and/or deception?;

(b) In a tort of passing off case, can the goodwill of a business be destroyed completely by mere publication (s) of documents that make no specific reference to the business owner?

[2] In this judgment we shall refer to the parties as they were before the High Court.

[3] The plaintiff commenced an action against the defendants in the High Court premised on three causes of action, namely, infringement of trade mark of the plaintiff, breach of dealership agreement and the tort of passing off.

[4] After a full trial the learned High Court Judge decided in favour of the plaintiff on all the three causes of actions. However, upon appeal to the Court of Appeal, the decision was reversed in favour of the defendants with costs of RM