Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
Basis of Damages - Damages in passing off and trademark infringement are generally awarded for loss of profits, damage to goodwill, and reputation. The primary method involves calculating the profits gained by the defendant or the loss suffered by the plaintiff due to misrepresentation ["
ARIANI TEXTILES & MANUFACTURING (M) SDN BHD vs GULATIS EXCLUSIVE SDN BHD - High Court Malaya Kuala Lumpur
"], ["ARIANI TEXTILES & MANUFACTURING (M) SDN BHD vs GULATIS EXCLUSIVE SDN BHD - High Court Malaya Kuala Lumpur
"], ["PLK ELECTRICAL ACCESSORIES MANUFACTURERS SDN BHD vs SUASA DAMAI (M) SDN BHD & ORS; LIEW WAI HOU & AN.... - High Court Malaya Kuala Lumpur
"].Assessment Methodology - The Loss of Profits Basis is commonly used, which involves determining the value of sales lost to the defendant and the profit margin of the plaintiff’s goods. Overhead expenses should be considered, and damages should exclude customers who were not misled to avoid overcompensation ["
PLK ELECTRICAL ACCESSORIES MANUFACTURERS SDN BHD vs SUASA DAMAI (M) SDN BHD & ORS; LIEW WAI HOU & AN.... - High Court Malaya Kuala Lumpur
"], ["PLK ELECTRICAL ACCESSORIES MANUFACTURERS SDN BHD vs SUASA DAMAI (M) SDN BHD & ORS; LIEW WAI HOU & AN.... - High Court Malaya Kuala Lumpur
"].Profit-Based Calculation - Damages are often calculated based on the defendant’s sales and profit margin, reflecting the profits naturally flowing from the unlawful act. This approach was exemplified in cases like MST Industrial Systems Sdn Bhd and AW Gamage Ltd v. Benetfink & Co Ltd ["
NAILI HOLDINGS SDN BHD vs SABELLA HOLDINGS SDN BHD - High Court Malaya Kuala Lumpur
"], ["ARIANI TEXTILES & MANUFACTURING (M) SDN BHD vs GULATIS EXCLUSIVE SDN BHD - High Court Malaya Kuala Lumpur
"].Additional Damages - Courts may also award damages for loss of goodwill and reputation, and in some cases, injured feelings of the plaintiff can be considered as part of aggravated damages ["
ARIANI TEXTILES & MANUFACTURING (M) SDN BHD vs GULATIS EXCLUSIVE SDN BHD - High Court Malaya Kuala Lumpur
"], ["GREAT FOOD INDUSTRIES SDN BHD vs MAZLAN MAHAMAD ISA & ORS - High Court Malaya Kuala Lumpur
"].Legal Principles - It is important to exclude customers who were not misled to prevent overcompensation. Damages are to be based on actual loss of profits rather than mere sales figures, emphasizing the importance of accurately identifying misled customers ["
ARIANI TEXTILES & MANUFACTURING (M) SDN BHD vs GULATIS EXCLUSIVE SDN BHD - High Court Malaya Kuala Lumpur
"], ["ARIANI TEXTILES & MANUFACTURING (M) SDN BHD vs GULATIS EXCLUSIVE SDN BHD - High Court Malaya Kuala Lumpur
"], ["PLK ELECTRICAL ACCESSORIES MANUFACTURERS SDN BHD vs SUASA DAMAI (M) SDN BHD & ORS; LIEW WAI HOU & AN.... - High Court Malaya Kuala Lumpur
"].Judicial Discretion - The discretion to award damages or an account of profits is exercised at the trial stage, not during the damages assessment, ensuring proper consideration of the evidence and circumstances ["
NAILI HOLDINGS SDN BHD vs SABELLA HOLDINGS SDN BHD - High Court Malaya Kuala Lumpur
"], ["GREAT FOOD INDUSTRIES SDN BHD vs MAZLAN MAHAMAD ISA & ORS - High Court Malaya Kuala Lumpur
"].Damages for passing off are primarily assessed based on profits lost by the plaintiff or profits gained by the defendant, with a focus on misled customers and damage to goodwill. The profit-based approach is prevalent, requiring careful calculation of sales, profit margins, and overheads. Courts aim to avoid overcompensation by excluding unaffected customers and emphasizing actual losses or profits directly attributable to the passing off act. This approach ensures damages reflect the true extent of harm caused by the unlawful conduct Multiple sources.
In the competitive world of business, protecting your brand is crucial. occurs when one party misrepresents their goods or services as those of another, potentially damaging reputation and . A common question arises: How to Calculate in such cases? Understanding this process can help businesses safeguard their effectively.
This guide explores the legal principles, types of , evidence requirements, and insights from Malaysian case law. While this provides general information, it is not legal advice—consult a qualified lawyer for your specific situation.
in cases aim to compensate the plaintiff for injury to their and business property. Courts strive to restore the plaintiff to the position they would have occupied had the not occurred .
Key considerations include:- The extent of by the defendant.- Damage to the plaintiff's .- Profits gained by the defendant through the .
As established in case law, the appropriate method for assessing is either to evaluate the profits gained by ... MST Industrial Systems Sdn Bhd, 7 MLJ 193 wherein the for was calculated based ...
. This underscores that must reflect , with being inadmissible
.
Courts award various based on the case's facts:
These compensate for direct financial losses, loss of , and reputation harm attributable to the . For instance:- .- Damage to brand reputation.
In one case, the plaintiff was awarded RM50,000 for loss of , while claims for business profit and construction costs were disallowed due to lack of evidence linking them to the defendant's actions
. for trademark infringement must reflect incurred, with being inadmissible; loss of can be awarded even without evidence of infringing products
.
Another example saw totaling RM540,183.99, including RM282,542.59 for lost business profits (calculated via an endorsed formula), RM200,000 for (supported by brand history and advertising), and counter-measure costs backed by invoices
. may also be awarded for and resulting from the infringement and
.
Where the defendant's conduct is egregious, courts may award these to punish and deter. In a design infringement case overlapping with principles, the court granted RM209,293.65, including based on the defendant's sales and deliberate actions
. The plaintiff failed to link loss of profits directly to infringement; however, the defendant's deliberate actions warranted punitive measures reflected in exemplary
.
can be based on the defendant's profits or a hypothetical royalty. for was calculated based on the defendant's sales and defendant's profit margin
. In industrial design cases, a 15% royalty on defendant's revenue was deemed fair
.
Proving is pivotal. The plaintiff must demonstrate:- Possession of .- Extent of damage caused by .
Quantification relies on:- Actual loss evidence.- Defendant's profits.- Economic data like sales figures or market impact .
In assessing it is also necessary to exclude those customers of the defendant who were not misled in making their purchases. Otherwise the claimant would be ov...
. Courts reject , as in the RM50,000 award without profit evidence
.
Thorough documentation—sales records, expert testimony, surveys—is essential. Little attention has been given to the assessment of despite the many cases of in the reports
, highlighting the need for robust proof.
If alone are inadequate, courts may grant to halt further harm . This is assessed by whether ongoing threatens .
In suits, are common alongside , as seen in cases protecting well-known marks like 'INTEL' from unauthorized use, leading to permanent 2022 0 Supreme(Del) 2055. The court found that the trademark 'INTEL' had been declared a ... The use of the mark 'INTEL' as a trademark and/or part of trading style would constitute infringement as well as 2022 0 Supreme(Del) 2055.
align with compensatory principles:- MST Industrial Systems Sdn Bhd 7 MLJ 193: via defendant's profits
.- Trademark infringement appeals: RM540k award emphasizing
.- Design cases: Royalty-based calculations with punitive elements
.
Broader IP contexts reinforce this, like packaging where deception justified 2017 0 Supreme(Bom) 399. Here, as in any action, a plaintiff must satisfy all three ... reputation and ... ... damage 2017 0 Supreme(Bom) 399.
This approach reflects established Malaysian principles . Businesses facing should act swiftly, documenting impacts meticulously.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Laws vary, and outcomes depend on specific facts. Seek professional counsel.
(Word count: approximately 1050)
#PassingOffDamages, #IPLawMalaysia, #CalculateDamages
It should not be considered as being the ratio decidendi of that case and thus the basis to rely on when assessing damages in a trade mark infringement and passing off. ... [23] Hence, with respect we are not inclined to say that in an action for infringement of a trademark and passing off the basis when assessing damages is on the actual loss of sale....
It should not be considered as being the ratio decidendi of that case and thus the basis to rely on when assessing damages in a trade mark infringement and passing off. ... [23] Hence, with respect we are not inclined to say that in an action for infringement of a trademark and passing off the basis when assessing damages is on the actual loss of sale....
Court's Findings On Loss Of Business Profit [18] In cases concerning intellectual property infringement and passing off, a firmly established legal principle dictates that the appropriate method for assessing damages is either to evaluate the profits gained by ... MST Industrial Systems Sdn Bhd, [2007] 7 MLJ 193 wherein the damages for passing off was calculated based ....
Damages may also be awarded for loss of business reputation and goodwill resulting from the infringement and passing off." ... and enforcement of the Defendants' infringment and passing off. ... However, in assessing damages it is also necessary to exclude those customers of the defendant who were not misled in making their purchases. Otherwise the claimant would be ov....
/passing-off action that it initiated against the Third Defendant (“D3”). ... [16]In McGregor on Damages (16th Edition), at paras 1947-1948 at pp 1261-1262, it is observed as follows: “Little attention has been given to the assessment of damages despite the many cases of passing off in the reports. ... ) & Bros v AW Gamage Ltd and Benetfink & Co Ltd such damages as na....
Damages may also be awarded for loss of business reputation and goodwill resulting from the infringement and passing off." ... (5) The Court has to ascertain the profit margin of a plaintiff's goods (the subject matter of trade mark infringement or the tort of passing off). ... However, in assessing damages it is also necessary to exclude those customers of the defenda....
[16] In McGregor on Damages (16th Edn), at paras 1947-1948, at pp 1261-1262, it is observed as follows: "Little attention has been given to the assessment of damages despite the many cases of passing off in the reports. Spalding v. ... off, conspiracy to injure the Plaintiff, and unlawful interference with the plaintiff's trade was allowed; and (iii) plaintiff's claim against D6 for passing#HL_....
Damages may also be awarded for loss of business reputation and goodwill resulting from the infringement and passing off." ... (5) The Court has to ascertain the profit margin of a plaintiff's goods (the subject matter of trade mark infringement or the tort of passing off). ... However, in assessing damages it is also necessary to exclude those customers of the defenda....
MST Industrial Systems Sdn Bhd; [2007] 7 MLJ 193; [2007] 6 CLJ 228 (CA) wherein the damages for passing off was calculated based on the defendant's sales and defendant's profit margin. ... [22] In McGregor on Damages (16th Edition), at paras 1947-1948 at pp 1261-1262, it is observed as follows: "Little attention has been given to the assessment of damages despite the many cases of passing#HL_EN....
of damages despite the many cases of passing off in the reports. ... stage, not at the subsequent stage of assessing damages. ... MSTIndustrial Systems Sdn Bhd [2007] 2 MLRA 274; [2007] 7 MLJ 193; [2007] 6 CLJ 228 wherein the damages for passing off was calculated based on the defendant's sales and defendant's profit margin. ... AW Gamage Ltd And Benet....
The grievance of the Plaintiff in the present suit is the use of the mark `INTEL' as part of the trading style, corporate name, and domain name, etc. by the Defendants as also as trademark in respect of the Defendants' products. The suit was for permanent injunction restraining trademark infringement, passing off, damages, delivery up, etc.
The respondent herein had filed a suit for permanent and mandatory injunction for passing off and damages. An ex-parte injunction was granted on 06.12.2017 restraining the defendants (appellants herein) from opening a restaurant with the trademark “SOCIAL HOUSE or SOCIAL”.
Here, as in any passing off action, a plaintiff must satisfy all three probanda of the so-called Classical Trinity: (i) reputation and goodwill in the goods; (ii) misrepresentation by the Defendants; and (iii) damage. Slightly different considerations arise when assessing the claim in passing off. This posits that similarity is demonstrated to begin with; that done, the question then is not so much whether it is confusing, but whether it is calculated to deceive.
This inference drawn in assessing the damages can be distinguished in the present case. 8. The above referred judgment covers the case of the Engineering student, who after passing out from the college was expected to earn minimum of Rs. 2,000/- per month.
“The damages are to be based on the reasonable expectation of pecuniary benefit or benefit reducible to money value. The learned Counsel laid stress on the last part of observation made to the effect that-for the purposes of balancing losses and gains any pecuniary advantage which from whatever source come to them, has to be considered. In assessing the damages all circumstances which may be legitimately placed in diminution of the damages must be considered….. The actual pec....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
