JUDGMENT

Abdul Malik Ishak J:

Enclosure 38

This was a summons in chambers filed by the applicant for the following orders:

(1) That the court to assess both the general and special damages incurred by the applicant including damages for the loss of use of the 'ZIG ZAG' trade mark;

(2) That the respondent to provide a detailed statement of accounts pertaining to the profits which the respondent obtained for the use of the 'ZIG ZAG'

trade mark and those profits be ordered to be paid to the applicant;

(3) That the court to assess other general and special damages incurred by the applicant as a result of the use of the 'ZIG ZAG' trade mark by the respondent;

(4) That the respondent be ordered to pay both the general and special damages as assessed by the court to the applicant.

and it was supported by an affidavit of Fazaruddin bin Ibrahim ("Fazaruddin") as seen in encl. 37. Fazaruddin deposed that affidavit in his capacity as the manager and the owner of a business styled as Perniagaan Fatama with an address at no: 12, Jalan Serampang, Taman Pelangi, 80400 Johor Bahru, and he too deposed the same affidavit in his capacity as the registered proprietor of the 'ZIZ ZAG' trade mark under the Trade Marks Act 1976. Fazaruddin deposed that on 7 July 1994 he obtained a trade description order and, consequently, by way of a notice of motion in encl. 10 dated 7 November 1994 the respondent - Parkson Corporation Sdn Bhd ("Parkson"), sought for at encl. 10 of para. (3) the following orders:

that Parkson as a respondent to this action be at liberty to:

(a) apply to expunge the registration of the trade mark number 92/07141 in the name of Fazaruddin; and

(b) set aside the order of this honourable court dated July 7, 1994 obtained by Fazaruddin in this action;

(c) have the damages assessed by the registrar.

Fazaruddin deposed that this court had on 23 October 1996 dismissed paras. (3)(a), (3)(b) and (3)(c) of encl. 10 with costs. But the respondent, so deposed Fazaruddin, was most unhappy with the written decision of this court that was handed down on 23 October 1996 and so the respondent filed a notice of appeal to the Court of Appeal on 21 November 1996. On the date of the hearing of that appeal before the Court of Appeal that was scheduled on 21 November 1997, the respondent had a change of heart and forthwith withdrew the appeal. This meant that the written decision of this court dated 23 October 1996 in regard to encl. 10 particularly in regard to paras. (3)(a), (3)(b) and (3)(c) remained intact. Incidentally, it is germane to mention that the written decision of this court dated 23 October 1996 vide Fazaruddin bin Ibrahim v. Parkson Corp Sdn Bhd had since been reported in the local law journals: [1997] 2 CLJ 863, [1997] 2 AMR 1197, [1997] 4 MLJ 360. It would be ideal to mention that the summons in chambers in encl. 38 was nothing more than a consequential order for assessment of damages which the applicant sought as an offshoot of the order of this court dated 23 October 1996. Fazaruddin was quite meticulous and he saw it fit to exhibit the order of this court dated 23 October 1996 as "FI 2" of encl. 37. Fazaruddin deposed that he sustained losses as a result of Parkson using his registered 'ZIG ZAG' trade mark. Fazaruddin also deposed that he had failed to secure tender or contract for the use of the 'ZIG ZAG' trade mark from companies like Berjaya Textiles Berhad and ACTCA Enterprise Sdn Bhd and he exhibited the relevant letters dated 18 November 1996 and 16 January 1997 from these two companies respectively. To appreciate the extent and severity of Fazaruddin's averments, these two letters marked as exhs. "FI 3" and "FI 4" of encl. 37 will now be reproduced. The letter from Berjaya Textiles Berhad was worded as follows:

BERJAYA TEXTILES BERHAD

BP/JB/2/96

18TH November 1996

M/S Perniagaan Fatama c/o Fazaruddin bin Ibrahim 12 Jalan Serampang Taman Pelangi 80400 Johor Bahru

Dear Sir

Re: Deferment of Future Order

We regret