Yusrin Faidz Yusoff JC:

GROUNDS OF JUDGMENT

INTRODUCTION

[1]This judgment concerned the quantum of damages that was awarded to the Plaintiff in a trademark infringement/passing-off action that it initiated against the Third Defendant (“D3”). The said judgment dated 23.10.2023 resulted in the appeal by both sides namely the appeal filed by D3 on 15.11.2023, and the cross-appeal filed by the Plaintiff on 17.11.2023.

[2]Following an assessment of damages in accordance with a notice issued under O.37 r.1 of the Rules of Court 2012

a)With regards to loss of business profit, I held that the Plaintiff is not entitled to this head of damage;

b)With regards to loss of goodwill, I awarded the sum of RM80,000.00;

c)With regards to legal costs incurred, I awarded the sum of RM212.783.96 (The allowed invoices are: IN000703, IN001181, IN001395, IN001414, IN001517 & 9128003745).

d)Aggravated damages in the sum of RM100,000.00;

e)Exemplary damages in the sum of RM100,000.00; and

f)Interest at 5% per annum on the judgment sum to be calculated from 07.11.2022 until the date of full realization.

[3]Essentially, D3 is appealing against part of my aforesaid decision, namely the RM80,000.00 awarded for loss of goodwill, the RM212,783.96 awarded for legal costs incurred, the RM 100,000.00 awarded for aggravated damages, and the RM 100,000.00 awarded for exemplary damages. Meanwhile, the Plaintiff is cross-appealing against my decision to disallow compensation for their loss of profit, and the quantum awarded for legal costs, namely the reduced amount of RM212,783.96 for legal fees. This judgment is prepared for, and equally applies to, both appeals.

BACKGROUND FACTS

[4]This suit was filed against the First and Second Defendants (“D1” & “D2”)on 15.08.2019. On 17.01.2020, the Plaintiff was allowed to include the Third, Fourth, Fifth and Sixth Defendants (“D3” - “D6”) as additional parties to this Suit.

[5]The action against D2 was discontinued on 20.09.2019 following an out-of-Court settlement. Judgment in Default of Defence was entered against D1 on 08.07.2020. Whereas the action against D4 and D5 was discontinued on 04.03.2022 following another out-of-Court settlement.

[6]The trial in respect of liability therefore proceeded against D3 and D6 wherein on 07.11.2022, my predecessor held as follows:

(i)Plaintiffs claim against D3 and D6 for the infringement of, and/or causing D1 and D2 to infringe, the Plaintiff’s copyright for the Plaintiff’s trademark was dismissed;

(ii)Plaintiff’s claim against D3 for passing off, conspiracy to injure the Plaintiff and unlawful interference with the Plaintiff’s trade was allowed; and

(iii)Plaintiffs claim against D6 for passing off, conspiracy to injure the Plaintiff an unlawful interference with the Plaintiff’s trade was dismissed.

[7]Both the Plaintiff and D3 filed an appeal against my predecessor’s decision on the issue of liability; wherein the same is now pending before the Court of Appeal in Appeal No. W-02(IPCv)(W)-2266-12/2022.

[8]The Plaintiff subsequently filed for assessment of damages wherein they sought a total sum of RM1,338,514.92. This is based on paragraphs 10 and 11 of my predecessor’s Judgment dated 07.11.2022 which reads as follows:

“(10) Satu siasatan tentang kerugian yang dialami oleh Plaintif, atau menurut pilihan Plaintif akaun keuntungan yang dibuat oleh Defendan Ketiga, daripada tindakan-tindakan kelirupaan, campur tangan perdagangan yang menyalahi undang-undang dan/atau konspirasi dengan niat untuk mencederakan Plaintif (“Conspiracy To Injure”), dan membayar semua jumlah setelah mengambil kira siasatan tersebut kepada Plaintif;

(11) Gantirugi-gantirugi lain untuk ditaksirkan;”

[9]As indicated above, I however approved the amount of RM492J83.96. The focus of the appeal and cross-appeal is solely on the assessment of damages, specifically addressing the principles applied in evaluating damages concerning the stated cause of action.

LOSS OF BUSINESS PROFIT Counsels’ Contentions on Loss of Business Profit

[10]The Pla