2011 MarsdenLR 3726 ; 2011 MarsdenLR 1

RICHARD MALANJUM, HASHIM YUSOFF, MOHD GHAZALI YUSOFF
TAIPING POLY (M) SDN BHD – Appellant
Versus
WONG FOOK TOH & ORS – Respondent

Damages in passing off claims are compensatory, focused on actual loss of business profits rather than mere sales or net profits, ensuring fair restoration for the injured party.

Headnote:(A) Trade Marks Act - Principles of assessing damages in passing off actions - Appellant secured judgment on liability but contested damages assessment in terms of loss of sales vs. net profits - The High Court reduced damages awarded by the Senior Assistant Registrar, prioritizing actual loss of business profits and loss of goodwill without overcompensation. (Paras 1, 6-18, 43)

(B) The court ruled that damages are compensatory and aim to restore the injured party to the position they would have been had the wrong not been committed. (Paras 11, 18)

Facts of the case:
The appellant, a registered owner of a trademark, claimed the respondent's product infringed its mark, resulting in a 2000 judgment for liability and subsequent disputes over the amount of damages, primarily whether to assess losses based on sales or actual profits derived. (Paras 1-10)

Findings of Court:
The court maintained the award of RM50,000 for loss of goodwill and allowed damages for loss of business profits amounting to RM32,726.70, reflecting the true financial impact of the infringement. (Paras 43, 44)

Issues: The primary issue was whether damages for passing off should be based on loss of sales or actual loss of business profits. (Paras 13, 42)

Ratio Decidendi: The court determined that loss of business profits, rather than simplistic loss of sales or net profits, should guide the assessment of damages in trademark infringement and passing off cases. (Paras 18, 42)

Result: The appeal was allowed to award damages for loss of business profits and maintain the goodwill compensation. (Paras 43, 44)