Wee Chong Jin CJ, LP Thean J, FA Chua J:

This is an appeal by Fraser & Neave Ltd. against the decision of P. Coomaraswamy J, who allowed the appeal of Yeop Hiap Seng Ltd. against the decision of the Assistant Registrar. The parties will hereinafter be referred to as "F & N" and"YHS" respectively.

The Facts

F & N and YHS are manufacturers of soft drinks. F & N is particularly strong in carbonated drinks while YHS's strength lies in still soft drinks. F & N have been bottling the drink Sarsaparilla and marketing it as "Sarsi" in Singapore from about 1929. In December 1977, YHS introduced a new carbonated drink known as "Mirinda Sarsi".

F & N thereupon commenced a suit against YHS, claiming an injunction and damages for infringement of their registered trademark and for passing off "Sarsi". On 13 April 1978, F & N obtained an interlocutory injunction in the following terms:

(1) The defendant Yeo Hiap Seng Ltd. be restrained from infringing the plaintiffs' registered Trade Mark No. 4551 (whether acting by their servants or agents or any of them or otherwise howsoever) from using the Chinese characters as descriptive of or in connection with any aerated waters manufactured by them in all advertisements or posters appearing in the locally distributed newspapers and in the radio and television media in Singapore until after the trial of this action or until further order.

(2) The defendants remove and pull down all posters containing the said Chinese characters and exhibits in all or any parts of Singapore wherever they appear in any premises in the Republic of Singapore.

The order for injunction contained the usual undertaking by the plaintiffs to abide by any order the Court may take as to damages.

On 29 August 1980, at the end of a lengthy trial, Sinnathuray J dismissed F & N's action and discharged the injunction. He also directed the Registrar to assess damages pursuant to the undertaking given in the injunction. The judgment is reported in [1988] 1 MLRA 411, [1982] 1 MLJ 122. A stay of the assessment pending F & N's appeal to the Court of Appeal was granted.

However, F & N did not pursue the appeal which was deemed withdrawn on 22 January 1982 pursuant to Rules of Supreme Court, O. 57 assessment of damages as ordered by Sinnathuray J.

The assessment before the Assistant Registrar took almost 7 days. In a reasoned judgment, the Assistant Registrar rejected the basis of YHS's claim. He also found that a proper computation of YHS's costs would have resulted in a negative figure (i.e. a loss. in any event and that no damages were therefore payable. We shall come to his findings shortly and will deal at some length with them, as many of the points canvassed before him were repeated before us.

From that decision, YHS appealed to a Judge in chambers. P. Coomaraswamy J allowed the appeal with costs and ordered F & N to pay YHS the sum of $674,000 by way of damages. He awarded interest at 6% per annum from 13 April 1978 (the date of the injunction) to the date of his judgment.

Against that decision, F & N have now appealed to us.

The Assistant Registrar's Decision

In the proceedings before the Assistant Registrar, YHS put forward the following basis for computing the sales that they claimed to have lost. They asserted that, but for the injunction, the ratio of sales of their Mirinda Sarsi to Mirinda Orange would have been the same as the ratio of sales of F & N Sarsi to F & N Orange. This, YHS said, would be a comparison on a like-for-like basis.

Accordingly, YHS contended that the damages that flowed from the injunction would be the difference between their Mirinda Orange sales and their Mirinda Sarsaparilla/Sarsi sales. Further, the period over which the loss of sales should be accounted for should be from 13 April 1978 (the date of the injunction) to 30 September 1984 (the end of the YHS's financial year for 1984, a period of almost 6½ years). This was because, YHS submitted, a new flavoured drink would find its level of sales within one