JUDGMENT

(Application For Transfer Of Proceedings)

Edwin Paramjothy Michael Muniandy JC:

Introduction

[1] This is the defendant's application vide encl 8 to transfer the present civil suit No: WA-22IP-37-04/2025 currently registered in the High Court of Malaya in Kuala Lumpur (Intellectual Property Court ) to the High Court of Malaya in Johor Baharu (JB High Court ). This application is made pursuant to O 57 r 1 of the Rules of 2012 ("ROC 2012") and is premised principally on the doctrine of forum non conveniens.

[2] The central question for determination is whether the defendant has successfully demonstrated that the JB High Court is a more suitable and appropriate forum for the hearing and disposal of this action, and whether the interests of justice warrant such a transfer. After considering the written submissions and authorities submitted by both parties, I dismissed encl 8 with costs. I now provide the reasons for my decision.

Factual Background

[3] The material facts have been comprehensively set out in the submissions filed by both parties. For present purposes, I adopt those narratives save where modification is necessary for clarity. The plaintiff is the sole proprietor of a business trading under the name and style of "KIM'S FLORIST & FLORAL SUPPLIES" in Johor Bahru, Johor. She is also the registered proprietor of the "KIM'S" trademarks in Classes 31, 35 and 41, under Trademark Registration Nos 2017070333, 2017070340 and 2017070342 respectively (collectively, "the KIM'S trademarks").

[4] It is the plaintiff's case that following the divestment of ownership of the defendant company by her mother to third parties unrelated to her, which occurred in or about September 2024, the defendant began and has continued to use, in the course of trade in Malaysia, the "KIMS" mark.

[5] The plaintiff's stance is that the said mark is identical with or confusingly similar to the KIM'S trademarks and that it has been applied to goods and services that are identical or similar to those for which the plaintiff's marks are registered. This, the plaintiff asserts, has been done without her consent, authorisation, or licence, and thus constitutes a clear infringement of her registered rights.

[6] For the reasons aforesaid, the plaintiff commenced the present suit in the Intellectual Property Court against the defendant for trademark infringement and passing off of her KIM'S trademarks.

[7] It is apposite to highlight that the plaintiff's company has its registered address and place of business in Kuala Lumpur. The defendant is a company with its registered address and principal place of business in Johor Bahru, Johor. It is this geographical separation of the parties' primary places of business that forms the bedrock of the defendant's application.

[8] The defendant filed this application to transfer the proceedings, contending that as both parties reside and conduct business primarily in Johor Bahru, and that the cause of action arose there, the JB High Court is the natural and proper forum. The plaintiff has opposed this application, arguing that the Intellectual Property Court is not only a Court of competent jurisdiction but is, in fact, the forum conveniens given the specialised nature of the dispute.

The Law

[9] The legal principles governing transfer of proceedings are well-established. It is a matter falling within the discretion of the Court , and that discretion must be exercised judiciously and in accordance with established judicial principles.

[10] The Court 's discretionary power to transfer cases from one High Court to another can be seen in O 57 r 1 of the Rules of 2012 ("ROC 2012") as follows:

"(1) Where the Judge of the High Court or a Judge of the Sessions Court or a Magistrate is satisfied that any proceedings in that Court can be more conveniently or fairly tried in some other Court of co-ordinate jurisdiction, he may on application by any party, order the proceedings to be transferred to the other Cou