XCHRX TIN TIN YAT PAO (INTERNATIONAL) LTD. (IN LIQUIDATION) v. HO SAI CHU AND OTHERS

HCA6856/1990

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.6856 OF 1990

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D E C I S I O N

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1. I am conscious that the effect of granting the interim injunction will stop the publication of the daily newspaper of the defendants. This is a drastic measure. However, in my view, this is an appropriate case for the granting of the interim injunction.

2. First, there is clearly a serious question to be tried on the question of passing off having considered the following :

1. The recent Court of Final Appeal's decision on the Licence Agreement.

2. The failure by the 3rd defendant to pay the licence fees.

3. The actions taken by the plaintiff to wind up the 3rd defendant.

4. The recent change in the corporate structure of the 3rd defendant.

5. The lack of notice by the 3rd defendant to the plaintiff that it would not continue with the Tin Tin Daily News (天天日報).

6. The cessation of the publication of the Tin Tin Daily News on 7 September 2000, followed immediately on the next day by the publication of the Everybody's Daily News (人人日報).

7. Although the names of the two newspapers are different, the new newspaper chose to adopt a double character title, namely "人人" for the newspaper, just like the old newspaper "天天".

8. The striking similarity of the formats of the two newspapers.

9. While recognizing the denial notices published by the defendants, there is evidence of representation that the new newspaper is the same as the old one.

10. The perception by the public that there is merely a change of name of the Tin Tin Daily News.

3. Second, damage will not be an adequate remedy for passing off which affects the goodwill of the plaintiff in the Tin Tin Daily News.

4. Third, balance of convenience lies in granting the injunction. The facts speak for themselves : Tin Tin Daily News has been published in Hong Kong in the past 40 years, compared to the new publication which only started recently on 8 September. The longer Tin Tin Daily News ceases publication and Everybody's Daily News continues with the publication, the greater the diminution in value of the goodwill of the plaintiff.

5. Although the application for injunction is made 11 days after the new publication had taken place, the fact is that on 8 September 2000, when Everybody's Daily News was first published, the plaintiff had offered the defendants time to cease publication on 12 September. This offer was rejected in the evening of 12 September. 13 September 2000 was a public holiday. Hence the delay is not such that I should not grant the interim relief now.

6. The undertaking given by Mr Liao, SC on behalf of the defendants, in my view, will not be sufficient to protect the interest of the plaintiff.

7. The orders can be granted in one action, namely HCA9048/2000. The application for injunction for infringement of the copyright can be dealt with at the inter partes stage.