The court held that unchallenged evidence of copyright and trademark ownership necessitates granting summary judgment, overriding claims of triable issues if no bona fide defense is established.

Headnote:(A) Copyright Act 1987 - Section 42 - Trade Marks Act 1976 - Ownership claims of computer software programs and trademarks - High Court dismissed appellant’s summons for judgment, granting respondent leave to defend. This court reaffirms that where triable issues of fact are apparent, appeals against summary judgment should generally be disallowed. However, in this case, the ownership of the copyright and trademarks was uncontested, supported by proper documentation. Evidence established respondent's involvement and denied assertions of ownership and lack of conspiracy. Appeal allowed, and judgment entered for the appellant. (Paras 8, 12, 16, 19, 24, 25)

Gopal Sri Ram JCA (delivering judgment of the court):

This appeal is directed against the order of the High Court dismissing the appellant’s summons for judgment and granting the respondent unconditional leave to defend the action. It has been said often enough that this court should dissuade appeals in cases where the judge has decided that there are triable issues of fact. In this context I would merely quote what I said in Lee Teng Siong v Lee Kheng Lian

Now, let me say at once that it is the usual practice of this court to refuse to entertain appeals against the refusal of summary judgment. That practice was established in 1994 when this court was constituted. Once a judge has held that there are triable issues disclosed in the papers before him, we generally allow his view to prevail. For, upon such an appeal, we are only a court of review and it is not our function to trawl through the pleadings and scrutinise the affidavits to see if the judge was wrong. Once the High Court holds that there are triable issues of fact, it is best that the matter is left to proceed to the stage of case management and then on to its conclusion in the usual way. Indeed, this court is entitled to dismiss an appeal against an interlocutory order without hearing full argument unless some manifest injustice would ensue. An example of the exercise of this power is SBJ Stephenson Limited v Mandy [1999] EWCA Civ 1720, where the English Court of Appeal dismissed an appeal against the grant of an interim injunction on the ground that it would be entirely pointless and indeed wrong for there to be a debate at the appellate stage as to whether the plaintiff in that case had a seriously arguable case justifying interim relief until trial. The court accepted that it would not be a correct use of the court’s time or cost efficient to enter into the merits of the appeal. The same applies in our jurisdiction.

But this is not an ordinary case. Here, there is no bona fide dispute about the facts. In fact much of the factual substratum forms common ground or is indisputable. Here then are the facts. The appellant (plaintiff in [2008] 3 MLJ 309 at 315 the court below) asserts ownership of computer software programs created by its servants or agents in the United States of America. It also claims ownership over six trademarks, namely, ‘MICROSOFT’ (in class 9 and 16), ‘WINDOWS’ (in class 16), its flag design, the word ‘ENCARTA’ and its ‘OFFICE COMPATIBLE’ logo (both in class 9). The respondent was the third defendant in the court below. The first and second defendants are private limited companies. They are not before us. It is the appellant’s case that it discovered a website http://members.xoom.com/ultmm offering unauthorised copies of its computer programs for sale. It then lodged a complaint with the Ministry of Domestic Trade and Consumer Affairs which led the Enforcement Division of the Ministry to conduct three raids on 19 August 2000. The first of these was at the first defendant’s compact disc factory; the second at the first defendant’s storage facility and the third at the second defendant’s premises. In consequence of these raids, the following items were recovered from the possession of the first and second defendants:

(i)eleven stampers, each of which has the capacity to produce between 50,000 to 100,000 CD-ROMs. Of these, nine were found to contain the following computer programs belonging to the appellant:

(a)Microsoft Golf 2001;

(b)Microsoft Money 2001 Standard;

(c)Microsoft Windows Millennium Edition;

(d)Microsoft Internet Explorer 3.02 Thai Version;

(e)Memphis 1546;

(f)Microsoft Visual Basic 6.0 Learning Edition;

(g)Microsoft Internet Explorer 4.0;

(h)Microsoft Front Page 2000;

(i)Microsoft Windows NT;

(j)Microsoft Internet Explorer 5.0;

(k)Microsoft Windows 95;

(l)Microsoft Windows 98;