Kickapoo (Malaysia) Sdn Bhd and Another v The Monarch Beverage Co (Europe) Ltd
Jurisdiction | Singapore |
Court | Court of Three Judges (Singapore) |
Judge | Chao Hick Tin JA |
Judgment Date | 11 December 2009 |
Neutral Citation | [2009] SGCA 63 |
Citation | [2009] SGCA 63 |
Plaintiff Counsel | R Chandran (R Chandran & Co) |
Docket Number | Civil Appeal No 40 of 2009 |
Published date | 21 December 2009 |
Defendant Counsel | Ponnampalam Sivakumar (Joseph Lopez & Co) |
Date | 11 December 2009 |
Subject Matter | Passing off,Equity,Infringement,Trade Marks and Trade Names |
11 December 2009 |
Judgment reserved. |
Andrew Phang Boon Leong JA (delivering the judgment of the court):
Introduction
1 This is an appeal against a part of the decision of the trial judge (“the Judge”) in The Monarch Beverage Company (Europe) Ltd v Kickapoo (Malaysia) Sdn Bhd
4 Monarch soon suspected that KM was purchasing beverage bases from unauthorised sources as it had stopped supplying KM with beverage bases and the beverage bases that they had previously supplied to KM were near the end of their expiry dates. On 24 November 2004, officers from the Malaysian Ministry of Health raided KM’s bottling plant in Seremban, Malaysia. The officers found unauthorised beverage bases on the premises. Subsequently, on 15 June 2005, Monarch terminated the Licence Agreement under cl 18A(4), which conferred on Monarch the broad discretion to terminate the Licence Agreement immediately by written notice if KM substituted the beverages bases in any way. After Monarch terminated the Licence Agreement with KM, it appointed HSPCL (which had taken over the business of HSC (see also above at [1])) on 15 June 2005 as its bottler and distributor in the Singapore market. Interestingly, HSCPL also concurrently ceased to produce Kickapoo beverages in China under the Shanghai licence.
6 Based on the above facts, Monarch initiated an action against the appellants for trade mark infringement and passing off, on the ground that they had already terminated the Licence Agreement. KM, however, maintained that it was still Monarch’s licensee and counterclaimed against Monarch for breach of contract in not supplying beverage bases which KM had ordered (see above at [3]). KM also counterclaimed against Monarch and four other defendants under the tort of unlawful conspiracy, alleging that the latter had collectively conspired to run KM out of business and cause it damage.
The decision below
The present appeal
9 The questions raised in the present appeal can be crystallised into two main issues:
Termination of the Licence Agreement
18 A. This Agreement may be terminated only in the following manner:
…
(4) Immediately on written notice by [Monarch] in the event of [KM’s] intentional substitution in whole or in part of the base of any of the Licensed Trademark Beverages in any way or manner by [KM]. Upon the receipt of such written notice, or in the event of [Monarch’s] notice that [KM’s] Licensed Trademark Beverages are not prepared in strict conformity with [Monarch’s] formulae, or are adulterated, [KM] agrees to discontinue immediately the sale and/or distribution of all Licensed Trademark Beverages not in conformity with [Monarch’s] formulae or which are in any way substituted or adulterated. [KM] acknowledges that its failure to so discontinue immediately will cause [Monarch] irreparable harm. …
[emphasis added]
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