Denys Robert CJ:

Agreed Facts

At the outset of the trial, a statement of the following agreed facts was submitted to me.

1. The plaintiffs are a company incorporated in Malaysia, having their registered office at 15th/18th Floors, MUI Plaza, Jalan P. Ramlee, 50250 Kuala Lumpur, Malaysia and carries on business in Malaysia.

2. The plaintiff is the registered proprietor of the trademark AYAMAS in Brunei Darussalam under Certificate of Registration No. 17265 (Part A) in Class 29 as of 25 February 1991.

3. The defendant had carried on business as a firm in Brunei Darussalam under the name and style of Ayamas since 2 December 1989 and that the said firm was incorporated into a limited company on 1 July 1992.

4. The defendants are the franchise holder of the "Grandy" Fast Food chain and that the defendant carries on business at Nos 10A to 12A, Lim Kok Beng Building, Km 6, Jalan Tutong, Bandar Seri Begawan, Brunei Darussalam.

The pleadings

I have as far as this is possible, omitted those parts of the pleadings which are covered by the above agreed facts.

The plaintiff operates a chain of outlets in Malaysia, which primarily sell fresh chicken and processed products made from chicken meat, under the trade mark of "AYAMAS" and has carried on that business since 1987.

The plaintiff has made "extensive use" of the word "AYAMAS" and the figure of a chicken in the course of its business since 1987.

The trade mark "AYAMAS", registered in Brunei Darussalam, is in respect of meat, fish, poultry and game, meat extracts, preserved dried and cooked fruits and vegetables; jellies, jams, eggs, milk and other dairy products; edible oils and fats, preserves and pickles.

The plaintiff has sold large quantities of chicken and chicken products in Brunei.The word "AYAMAS" and the figure of a chicken appear on all the plaintiff's packages.These are said to be "universally understood" as indicating that the goods in those packages were manufactured by the plaintiff.

The defendant is said to have infringed the plaintiff's registered trade mark by using the word "AYAMAS" in the operation of the "Grandy's" fast food outlets, in such a way as to pass off the plaintiff's trade mark.

The use of the word "AYAMAS" in the name of the defendant company was calculated to deceive purchasers into thinking that the goods sold by the defendant are made by the plaintiff.

The plaintiff seeks injunctions to restrain the defendant from -

(a) infringing the plaintiff's registered trade mark "AYAMAS", and

(b) passing off its chicken products as those of the plaintiff.

The defendant denies any infringement of the plaintiff's trade mark and with passing off the plaintiff's products.

The defendant alleges that it has used the name "Ayamas Sdn. Bhd." in good faith as the company name.It has never used the word "AYAMAS" in its fast food outlet, or misled or deceived customers in any way to believe that they were buying cooked chicken or poultry made by the plaintiff.

It is said that the defendant did not make any misrepresentations to the public and that it was "highly unlikely that members of the public would be confused or associate the plaintiff's mark with "Grandy's chicken or poultry".

The defendant further argued that the plaintiff had no business or goodwill in Brunei at all.In the alternative, the defendant argued that the plaintiff and the defendant were in a completely different line of business and that the plaintiff would not sustain any damage or loss in any event.

The plaintiff provided, in answer to requests by the defendant, further and better particulars of the statement of claim.Among these particulars were the following, namely that-

(a) The plaintiff owned the "AYAMAS" chain of outlets in Malaysia;

(b) This chain sold fresh, chilled, whole dressed chicken, chicken parts like drumsticks, wings, breasts, keel, thighs, etc.;

(c) Processed products made from chicken meat included burgers, nuggets, sausages, satay, chicken fingers, fritters and smoked bonele