JUDGMENT

Ramly Ali J:

Introduction

[1] In this case, Aspect Synergy Sdn Bhd (ASSB) has applied for a declaration of non-infringement of trademark via its originating summons and Banyan Tree Holding Ltd. (BTHL) had counterclaimed against ASSB and OSK Property Holding Bhd (OSK Property) for passing off and trade mark infringement due to the use of ASSB's mark, 'Taman Sri Banyan, Country Heights and device ('ASSB's mark'). BTHL contended that ASSB's mark is similar to BTHL's mark, 'Banyan Tree & device' ('BTHL's mark').

The Parties

[2] ASSB and OSK Property Holdings Berhad are Malaysian companies. They are part of the OSK Group, a reputable group of companies in Malaysia. ASSB's nature of business is that of residential property development.

[3] BTHL is a Singapore company and its business is mainly management and development of resorts, hotels and spa. It does not have any resorts in Malaysia.

ASSB's Case

[4] ASSB is a wholly owned subsidiary of OSK Property, a public company listed on the Main Board of Bursa Malaysia. OSK Property is in turn the property arm and a direct subsidiary of OSK Holdings Berhad ('OSK Holdings'), which is also a public company listed on the Main Board of Bursa Mala