Introduction

[1] This is an appeal by the appellant, Mesuma Sports Sdn Bhd (the defendant in the High Court), pursuant to leave of this Court to Appeal against the whole decision of the Court of Appeal that affirmed the judgment of the High Court.

[2] The subject matter of the dispute between Mesuma Sports Sdn Bhd and the respondent, Majlis Sukan Negara Malaysia (the plaintiff in the High Court) revolved around 'the tiger stripes design' over goods such as sports attire for the use of all Malaysian athletes representing the country in various sports events held within the country and beyond. This case concerned the tort of passing off, which is a common law tort that can be used to enforce unregistered trade mark rights. To a large extent what is in contention in the present appeal is the common law ownership right to the tiger stripes design as an unregistered trade mark in a trade mark sense in the course of trade.

[3] We shall be referring to parties in this judgment in the capacity as they were in the High Court, namely the appellant as the defendant and the respondent as the plaintiff.

Background Facts

[4] The plaintiff is a statutory body established under the p