GUANGDONG LIANSU TECHNOLOGY INDUSTRIAL CO LTD v. L & S TECHNOLOGY INDUSTRY INT'L GROUP (HK) LTD

HCA 447 / 2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 447 OF 2008

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BETWEEN

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D E C I S I O N

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1.  It is the Plaintiff’s application for summary judgment against the Defendant. The Plaintiff’s claim is based on passing off based on the fact that the Plaintiff is a reputable company in the business carrying out business in the area of manufacture and sale and supply of plastic tubes amongst others.

2.  The Defendant is not here today. I am satisfied that proper service has been rendered upon the Defendant and the Defendant ought to have been aware of the present hearing, and therefore I am satisfied that the application should proceed today notwithstanding the absence of the Defendant. I may mention that the Defendant was also absent at the last occasion at the call-over hearing of this application.

3.  The Defendant has filed a defence while acting in person. Effectively, the Defendant says that the Plaintiff’s products are not up to standard and also that the Defendant was incorporated in Hong Kong according to the law and presumably therefore they are entitled to have the name of the company as it is and to carry out business as they wanted.

4.  However, the Defendant has not filed any evidence in support of the opposition, nor has there been any evidence filed by the Defendant to support the allegations set out in the defence.

5.  Looking at the evidence filed by the Plaintiff, I am satisfied that the Plaintiff has established a reputation both in Hong Kong and in the Mainland in the production, sale and marketing of plastic tubes under or by reference to the trademark “聯塑” and/or Liansu. Further, these trademarks have been registered in Hong Kong, in the mainland and other parts of the world.

6.  I am also satisfied by the Plaintiff’s evidence that the Plaintiff has substantial business interests in these areas with trademarks.

7.  The Plaintiff’s case is that the Defendant was set up as an instrument of deception to mislead the public both in Hong Kong and the mainland to believe that the goods and businesses of the Defendant were approved or associated by the Plaintiff. In particular, the Defendant has authorised a company which was associated with the Defendant in the mainland to use its Chinese name in connection with the sales, supply and marketing of plastic materials.

8.  Further, the Defendant and its directors have applied to register in the Mainland China the trademark L & S FASON 聯塑鋒尚and (L & S 龍塑 & Device) although, as I understand from the evidence, these registrations have not been yet approved by the relevant mainland authority.

9.  Looking at the evidence in the round as filed by the Plaintiff, I am satisfied that the Plaintiff has established a case of passing off by the Defendant. As I have said earlier, the Plaintiff have established that it enjoys goodwill in the name, mark or indicia, which it wishes to prevent the Defendant from using, and the Defendant has by its name and by its business made a representation which is likely to lead members of the public to believe that its business, goods or services are or are related to the business, goods or services of the Plaintiff.

10.  Moreover, I am also satisfied that the Plaintiff suffers or will suffer or is likely to suffer by reason of the erroneous belief engendered by the Defendant’s misrepresentation. Insofar as that is concerned, I refer to the case submitted by the Plaintiff’s counsel, Reckitt & Colman Products Limited v Borden [1990] RPC 341 at 406.

11.  Further, I am also satisfied, as the Plaintiff submits, that the Defendant is equipped with an instrument of deception by the name of its company and the court has jurisdiction to grant an injunction against it for the use of the instrument. A name or mark which would, by reason of its similarity to the name or mark of another inherently led to passing off is such an instrument. I further refer to the cases submitted by Plaintiff’s counsel which areBritish Telecommunications Plc v One in a Million [1999] FSR 1 at 18, Glaxo v Glaxowellcome Ltd [1996] FSR 388 and Kerly’s Law of Trade Marks and Trade Names(14^th Ed, 2005), paragraphs 15-161 to 15-164.

12.  By reason of the evidence before me and my satisfaction that the Plaintiff has established its reputation, and that the Defendant has been carrying on activities which amount to the tort of passing offof the Plaintiff’s reputation and name.Nor do I think that the quality of the Plaintiff’s product to be below high standard as alleged by the Defendant is of any relevance to the Plaintiff’s claim even if proved correct.

13.  I am satisfied that there is no defence to the present action with the evidence as it now stands. The Defendant has not raised any triable issue..

14.  For this purpose I grant the application to the Plaintiff and I make the order as set out in the inter partes summons.