Pacific Internet Ltd v Catcha.com Pte Ltd

• Jurisdiction: Singapore
• Judge: Lai Kew Chai J
• Judgment Date: 10 May 2000
• Neutral Citation: [2000] SGHC 83
• Docket Number: Suit No 1730 of 1999
• Date: 10 May 2000
• Year: 2000
• Published date: 19 September 2003
• Plaintiff Counsel: Thio Shen Yi and Yvonne Lee (Thio Su Mien & Partners)
• Citation: [2000] SGHC 83
• Defendant Counsel: Andre F Maniam and Lawrence Tan (Wong Partnership)
• Court: High Court (Singapore)
• Subject Matter: Claim of trespass into plaintiffs' internet properties,Important or difficult point of law raised in statement of claim,Striking out part of statement of claim,O 18 r 19 Rules of Court 1997,Governing principles,Civil Procedure,Pleadings,Complexity and novelty of case justified full trial,Plaintiffs' averments neither ridiculous nor incredible

: Following the defendants` linking of their web sites to subsidiary web pages, which the plaintiffs described as commercially exploitative at their expense, the plaintiffs commenced these proceedings against the defendants. They asserted four causes of action, namely: (1) copyright infringement; (2) passing off; (3) breach of statutory duty involving s 188 of the Copyright Act; and (4) the common law tort of trespass.

The defendants applied for an order, amongst others, that pursuant to O 18 r 19 of the Rules of Court and the inherent jurisdiction of the court the plaintiffs` claim for trespass under paras 25 to 27 of the statement of claim and paras (22) to (27) of the relief claimed be struck out as (a) they disclose no reasonable cause of action; (b) they are frivolous or vexatious; (c) they may prejudice, embarrass or delay the fair trial of the action; or (d) they are otherwise an abuse of the process of the court. Although it was not made clear, ground (a) in the main was relied upon. The learned assistant registrar dismissed this prayer. Dissatisfied with the decision the defendants appealed.

On 3 March 2000 I heard the appeal and judgment was reserved. Since then, the solicitors of the defendants wrote to this court on 31 March 2000 drawing attention to a decision of US Federal Judge Harry Hupp in Ticketmaster Corp v Tickets.Com Inc in which Ticketmaster sued Tickets.Com to protect their web sites from unauthorised incursions. Solicitors for the plaintiffs immediately responded and correspondence including written submissions ended with letters of both solicitors which are both dated 19 April 2000. The defendants repeated essentially their arguments canvassed before the learned assistant registrar and I will revert to them and the effect of Ticketmaster after setting out the background, the averments in the statement of claim which the defendants attempted to strike out in limine and the law and practice of striking out.

The trespass claim as pleaded

Under this claim, the plaintiffs assert that they are owners of what they compendiously described as the `Plaintiffs` Movies Property`. These are comprised of a number of items, which, I was told by learned counsel for the plaintiffs, Mr Thio Shen Yi, may arguably in law be described as either personal property or property akin to real property. I will, with respect, adopt the language of the pleadings. They are as follows: (i) the proprietary frames (ie windows that appear on the web surfer`s computer screen) on the plaintiffs` Movies Online (`MOL`) web site and all corresponding web pages which web surfers may access by clicking upon any of the HREFs; (ii) the HTMLs underlying the plaintiffs` MOL web site; (iii) the HTMLs underlying each subsidiary web page which appears on the web surfer`s computer screen when the web surfer clicks on each HREF comprised within the plaintiffs` MOL web site; (iv) the selection, compilation and arrangement of date, in respect of each movie comprised within the plaintiffs` MOL web site and its subsidiary web pages; (v) the content, commentary and write ups in respect of each movie comprised within the plaintiffs` MOL web site and its subsidiary web pages; and (vi) the artistic work in the designs comprised within the plaintiffs` MOL web site and its subsidiary web pages.

In the same context, the plaintiffs also assert that they are owners of five categories of property, either personal or analogous to real property, in relation to their `Tatler Property`. First, they claim proprietary interest in the proprietary frames on the main web site at the URL of their `Tatler Property`: http://www.bigwok.com.sg and all subsidiary web pages. Secondly, they claim property in the underlying HTMLs. Thirdly, they claim property in the HTMLs underlying the search engines for foods and restaurants comprised within the web site at the abovementioned URL. Next, they claim property in the selection, compilation and arrangement of data, within the search engine and database available at the web site at the aforesaid URL and the subsidiary web pages. Finally, like those relating to the MOL site, they claim property in the artistic work in the design comprised within their `Tatler` web site and its subsidiary web pages. Both groups of property were collectively described in the pleadings as the `plaintiffs` properties`.

By para 26 it was pleaded that the defendants had during 1999 wrongfully without authorisation and permission entered and crossed into the plaintiffs` properties by accessing the plaintiffs` MOL web site and the plaintiffs` Tatler web site and entering therein with the unauthorised intent to copy the relevant HTMLs and reproduce such relevant HREFs for the defendants` own commercial benefit. By an amendment effected after the hearing before the learned Assistant Registrar, the plaintiffs further assert that the defendants had committed the acts of trespass with the unauthorised intent to `use, take and/or copy, and used, took and/or copied` the relevant HTMLs and reproduced the relevant HREFs `without the plaintiffs` consent`.

The acts of trespasses were alleged to have taken place `prior to` the defendants` alleged acts of copyright infringements pleaded earlier in the statement of claim. Again by an amendment effected after the hearing before the learned assistant registrar, the plaintiffs elaborated on their assertion that the defendants had accessed their web sites `in order to create a link thereto` and must have unravelled the HTLMs, HREFs, source codes and/or request forms underlying the plaintiffs` web pages. The defendants had to unravel them, as was averred in the amendments, to create the defendants` HREFs, the plaintiffs` MOL search bar link in the defendants` Movies web site B, the plaintiffs` Tatler Top 125 restaurants search engines in the defendants` Food n` Entertainment web site and the respective links from the defendants` Movies web site A, the defendants` Movies web site B, to the relevant subsidiary web pages of the plaintiffs` MOL web site.

In terms of damages the plaintiffs claim those acts of trespass have caused confusion in the minds of the public between the defendants` `works` and the plaintiffs `works`. They have also enhanced the value of the defendants` home page, the...