Zakaria Yatim J:

This is an application by the plaintiff for final judgment under O. 14 of the Rules of the High Court 1980 against the first, second, third, fourth and fifth defendants for an injunction to restrain the defendants and each of them whether acting by themselves, their partners or proprietors (as the case may be), servants or agents or otherwise however from infringing the plaintiff's registered Trade Mark No. M/B41437. The plaintiff also asks the Court for an order for the delivery up or destruction upon oath of all goods and articles in the possession, power, custody or control of each of the defendants, the manufacturer, use or sale by any of the defendants that would offend against the injunction. The plaintiff further asks the Court to order an enquiry to be made as to what damages (if any) have been sustained by the plaintiff by reason of the wrongful acts by each of the defendants and payment to the plaintiff of all sums found due upon taking such enquiry. The plaintiff also asks that the defendants pay to the plaintiff costs of this action and of this application to be taxed.

The plaintiff is a company incorporated under the laws of Switzerland and having its registered office at No. 133 rue de la Paix, La chaux-do-Fonds, Switzerland which territory is outside the scheduled territories as defined by the Exchange Control Act 1953. In the statement of claim the plaintiff avers that it is the proprietor of the Trade Mark "EBEL" with device was registered under No. M/B41437 in Malaysia in respect of watches and parts thereof. The said mark has at all material times been valid and subsisting.

The first defendant carries on business as a firm at Ground Floor, Jalan Chow Kit, Kuala Lumpur selling, inter alia, watches. The second defendant carries on business as a firm at L9091, Sungei Wang Plaza, Kuala Lumpur and is engaged in the manufacture and sale of watches and/or components thereof. The third defendant carries on business as a firm at Ground Floor, I-C, Jalan Chow Kit, Kuala Lumpur and is engaged in the manufacture and sale of watches. The fourth defendant is engaged either on his own account or as agent for the first defendant in the sale of watches. The fifth defendant is engaged either on his own account or as agent for the second defendant in the sale of watches.

In para. 6 of the statement of claim the plaintiff alleges that the defendants and each of them have since the registration of the said Trade Mark and before the issue of the writ in the present action, infringed the registered Trade Mark "EBEL"' by using in the course of trade in Malaysia in relation to watches not the watches of the plaintiff, the plaintiff's registered Trade Mark "EBEL" or colourable imitation thereof. The plaintiff also alleges that the use of the imitation watches is calculated to be passed off as and for the watches of the plaintiff. The plaintiff claims that it had suffered loss and damage. The prayers contained in the application for summary judgment are also included in the statement of claim.

It is clear that the Court has jurisdiction to enter summary judgment under O. 14 of the Rules of the High Court for an injunction. In Shell-mex and BP Ltd. v. Manchester Garages Ltd. [1971] 1 AER 841 at 842j to 843a and 845 f-g, Lord Denning, MR said,

I see no reason whatever why a plaintiff cannot go straight to the Judge and ask for summary judgment under RSC O. 14 for an injunction ... The plaintiffs were quite entitled to go under RSC O. 14 to the Judge for an injunction.

Mr. Lee Tatt Boon, Counsel for the plaintiff said that he was asking for summary judgment for injunction in respect of infringement only and not in respect of passing-off. In the statement of claim, the plaintiff is praying for injunction in respect of both infringement and passing-off. Mr. Lee submitted that he was entitled to ask the Court for summary judgment for injunction in respect of infringement only. I agree with Mr. Lee's submission. Or