Copyright ownership and subsistence must be proven, and the standard of proof is on the balance of probabilities.

[1] There are three related Civil Appeals presented before us namely:

i. W-02(IPCV)(W)-2376-12-2016 (Appeal 2376)

ii. W-02(IPCV)(W)-2-01-2017 (Appeal 2); and

iii. W-02(IPCV)(W)-3-01-2017 (Appeal 3).

[2] Appeal 2376 originated from High Court's Civil Suit 22IP-36-07-2014 (Suit 36) while Appeal 2 and 3 Appeal originated from High Court's Civil Suit 22IP-37-07-2014 (Suit 37).

[3] These appeals are concerned with Honda Giken Kogyo Kabushiki Kaisha (Honda)'s copyright claims and damages for alleged infringements by the defendants. Honda is the plaintiff in all suits. The defendants in Suit 36 are DNC Asiatic Holdings Sdn Bhd, Demak Marketing Sdn Bhd and Demak Motor Corporation Sdn Bhd. While the defendants in Suit 37 are MForce Bike Holdings Sdn Bhd and Malaysian Formula Bikes Sdn Bhd.

[4] During oral submissions before us, all parties agreed to proceed with Appeal 2 first, and the result will determine the direction of the other two Appeals, ie Appeal 2376 and Appeal 3. Hence this decision and the Grounds of Judgment pertain to Appeal 2 only.

Salient Facts Of The Case

[5] Honda Giken Kogyo Kabushiki Kaisha ("the plaintiff"/"Honda") is a Japanese automobiles company. The defendants in Suit 36, namely DNC Asiatic Holdings Sdn Bhd, Demak Marketing Sdn Bhd, and Demak Motor Corporation Sdn Bhd, are involved in importing, assembling, marketing and selling motorcycles known as "Demak" (First bike). The defendants in Suit 37, ie MForce Bike Holdings Sdn Bhd and Malaysian Formula Bikes Sdn Bhd are involved in importing, assembling and distributing motorcycles known as "SYM E-SMART" (Second Bike).

[6] Honda claimed ownership over copyright of its motorcycles known as EX-5 or EX-5 Dream ("EX-5"). The copyright was created in 1985 in Japan and EX-5 was launched in Malaysia in 1987. Honda claimed that the defendants in Suit 36 and Suit 37 had infringed Honda's copyright by manufacturing/producing/assembling/distributing/marketing/selling the First Bike and Second Bike.

[7] In both civil suits, Honda prayed for, among others, permanent injunction, order for delivery and damages of copyrights infringement; costs and other suitable relief.

[8] The defendants in Suit 36 contended that Honda failed to establish that EX-5 drawing was created by Mr Ichiro Koizumi ("Mr Koizumi"). It was contended that the First Bike was created independently in 2003 by Bally TRD. The First Bike did not bear Honda's name and was not similar to EX-5. There was no evidence of actual loss suffered by Honda.

[9] The defendants in Suit 36 also made a counterclaim, for among others, a declaration under the Competition Act 2010, a declaration that Honda has no ownership over the copyright, a declaration that no infringement of copyright had taken place, unlawful interference with trade and consequential injunctive reliefs against Honda, costs and other suitable reliefs.

[10] In Suit 37, the defendants contended that the Second Bike was launched in 2014 in Malaysia. It was also contended that, the Second Bike was created independently based on Vietnamese model of Sanda Boss and it was launched in Vietnam in 1994. It was the defendants' case that the Second Bike is not similar to EX-5. Honda was thus put to strict proof of its loss and damages.

Findings Of Learned High Court Judge

[11] In the High Court, both suits were heard together. On 24 November 2016, the High Court decided that in Suit 36, Honda's claim was allowed with costs of RM110,000.00 and the defendants' counterclaim was dismissed. While in Suit 37, Honda's claim for damages for alleged infringement by the defendants was dismissed with costs of RM40,000.00.

[12] D