Public Prosecutor v Tan Yan Tong

• Jurisdiction: Singapore
• Judge: Chong Kah Wei
• Judgment Date: 29 August 2003
• Neutral Citation: [2003] SGMC 30
• Published date: 02 October 2003
• Court: Magistrates' Court (Singapore)
• Plaintiff Counsel: Lau Kok Keng and Khor Hwee Ping (Rajah & Tann)
• Defendant Counsel: James Joseph (James Joseph & Associates)

1 This was a prosecution brought by Sony Computer Entertainment Inc (“Sony”) against the accused, Mr Tan Yan Tong (“Tan”) for six charges of possession for the purpose of trade of CD-ROMs and game title sleeves to which registered PlayStation trade marks had been falsely applied under section 49(c) of the Trade Marks Act, Cap 332 (PSS 1017 of 2002) (“the trade mark infringement charges”), and 24 charges of possession for the purpose of sale of CD-ROMs, DVD-ROMs and game title sleeves infringing copyright owned by Sony under section 136(2)(a) of the Copyright Act, Cap 63 (PSS 1018 of 2002) (“the copyright infringement charges”). The prosecution was carried out under a fiat from the Public Prosecutor. Tan claimed trial to all the charges.

2 All the 30 charges alleged that Tan had committed the offences on or about 2 May 2002 at Block 302 Woodlands Street 31 #01-273, Singapore 730302 in respect of the same transaction. The CD-ROMs, DVD-ROMs and game title sleeves were in respect of PlayStation and PlayStation2 computer games.

3 The six trade mark infringement charges were similar, and differed only in the number and nature of the articles involved, the registered trade mark involved, and the manner in which the trade marks had been falsely applied. The two registered trade marks involved were Trade Mark No T94/01999F (“PS Device Mark”) and Trade Mark No T98/06335C (“PS Word Mark”). The first charge in PSS 1017/2002 which is set out below, is representative of the six trade mark infringement charges.

PSS 1017/2002 (First Charge) (Exh. “P1”)

You, Tan Yan Tong (NRIC S8135688B) are charged that you, on or about 2 May 2002 at Block 302 Woodlands Street 31 #01-273, Singapore 730302, did have in your possession for the purpose of trade 1,532 pieces of CD-ROMs to which Sony Computer Entertainment Inc’s registered trade mark under Trade Mark No T94/01999F, a representation of which is annexed hereto, has been falsely applied, in that each of the aforesaid CD-ROMs, when played on a PlayStation game console that has been modified to enable counterfeit CD-ROMs in the PlayStation format to be played, caused an unauthorised reproduction of the aforesaid registered trade mark to be displayed on the television screen, and you have thereby committed an offence punishable under section 49(c) of the Trade Marks Act (Cap 332).

4 The table below summarises the particulars of the six trade mark infringement charges:

Charge No	Type of article & quantity	Registered trade mark involved and manner of false application
1st (Exh P1)	1,532 pieces of counterfeit PlayStation CD-ROMs	Sony’s Trade Mark No T94/01999F (“PS Device Mark”), falsely applied, in that each CD-ROM when played on modified PlayStation game console, caused unauthorised reproduction of the trade mark to be displayed on the television screen.
2nd (Exh P2)	1,656 pieces of counterfeit PlayStation2 CD-ROMs	Sony’s Trade Mark No T98/06335C (“PS Word Mark”), falsely applied, in that each CD-ROM when played on modified PlayStation game console, caused unauthorised reproduction of the trade mark to be displayed on the television screen.
3rd (Exh P3)	204 pieces of counterfeit PlayStation2 CD-ROMs	Sony’s Trade Mark No T94/01999F (“PS Device Mark”), falsely applied on the physical surfaces thereof.
4th (Exh P4)	52 pieces of counterfeit PlayStation2 CD-ROMs	Sony’s Trade Mark No T98/06335C (“PS Word Mark”), falsely applied on the physical surfaces thereof.
5th (Exh P5A)	157 pieces of counterfeit game title paper sleeves	Sony’s Trade Mark No T94/01999F (“PS Device Mark”), falsely applied to the game title paper sleeves accompanying 157 pieces of PlayStation2 CD-ROMs.
6th (Exh P6A)	164 pieces of counterfeit game title paper sleeves	Sony’s Trade Mark No T98/06335C (“PS Word Mark”), falsely applied to the game title paper sleeves accompanying 164 pieces of PlayStation2 CD-ROMs.

5 The 24 copyright infringement charges were similar, and differed only in the number and nature of the articles involved, and the work in which the copyright subsisted and of which infringing copies were contained in the articles involved. The first charge in PSS 1018/2002 which is set out below, is fairly representative of the 24 copyright infringement charges.

PSS 1018/2002 (First Charge) (Exh. “P7”)

You, Tan Yan Tong (NRIC S8135688B) are charged that you, on or about 2 May 2002 at Block 302 Woodlands Street 31 #01-273, Singapore 730302, did have in your possession for the purpose of sale a total of 3,557 pieces of CD-ROMs and DVD-ROMs (comprising 3,115 pieces of CD-ROMs and 442 pieces of DVD-ROMs), each of which contained an infringing copy of a library program in which copyright in Singapore subsisted, such copyright being owned by Sony Computer Entertainment Inc, the titles of which CD-ROMs and DVD-ROMs are annexed hereto, which 3,557 pieces of CD-ROMs and DVD-ROMs you ought reasonably to have known to contain infringing copies of the said library program, and you have thereby committed an offence punishable under section 136(2)(a) of the Copyright Act (Cap 63).

6 The table below summarises the particulars of the first four copyright infringement charges, which concern a library program, and the PS logo in various forms:

Charge No	Type of article & quantity	Work in which copyright subsisted in Singapore and of which infringing copies were contained in the articles
1st (Exh P7)	3,557 pieces of counterfeit PlayStation & PlayStation2 CD-ROMs & DVD-ROMs (comprising 3,115 CD-ROMs & 442 DVD-ROMs)	Each CD-ROM and DVD-ROM contained an infringing copy of a library program in which copyright in Singapore subsisted, such copyright being owned by Sony.
2nd (Exh P8)	1,532 pieces of counterfeit PlayStation CD-ROMs	Each CD-ROM when played on a modified PlayStation game console, caused an unauthorised reproduction of the “PS logo” to be displayed on the television screen, when copyright subsisted in Singapore in the artistic work comprised in the “PS logo”, such copyright being owned by Sony.
3rd (Exh P9)	204 pieces of counterfeit PlayStation2 CD-ROMs	Each CD-ROM bore on the physical surface thereof the “PS logo”, when copyright subsisted in Singapore in the artistic work comprised in the “PS logo”, such copyright being owned by Sony. (Note: These are the same CD-ROMs referred to in the third charge in PSS No 1017/2002.)
4th (Exh P10)	157 pieces of counterfeit game title paper sleeves	Each game title paper sleeve bore the “PS logo”, when copyright subsisted in Singapore in the artistic work comprised in the “PS logo”, such copyright being owned by Sony. (Note: These are the same paper sleeves referred to in the fifth charge in PSS 1017/2002.)

7 The 5th to 24th charges in PSS 1018/2002 concern game software in the PlayStation or PlayStation2 formats. The following table summarises the titles of the game software and the number of pieces of CD-ROMs or DVD-ROMs containing infringing copies, in respect of the 5th to 24th charges in PSS 1018/2002.

Charge No	Type of article & quantity	Work in which copyright subsisted in Singapore and of which infringing copies were contained in the articles
5th (Exh P11)	5 pieces of CD-ROMs entitled “Contender”	Each CD-ROM contained the game software in the PlayStation format entitled “Contender”, when copyright subsisted in Singapore in the said game software, such copyright being owned by Sony.
6th (Exh P12)	7 pieces of CD-ROMs entitled “Cool Boarders 2001”	Each CD-ROM contained the game software in the PlayStation2 format entitled “Cool Boarders 2001”.
7th (Exh P13)	6 pieces of CD-ROMs entitled “Crash Bandicoot”	Each CD-ROM contained the game software in the PlayStation format entitled “Crash Bandicoot”.
8th (Exh P14)	6 pieces of CD-ROMs entitled “Crash Bandicoot 2”	Each CD-ROM contained the game software in the PlayStation format entitled “Crash Bandicoot 2”.
9th (Exh P15)	6 pieces of CD-ROMs entitled “Crash Bandicoot Warped”	Each CD-ROM contained the game software in the PlayStation format entitled “Crash Bandicoot Warped”.
10th (Exh P16)	5 pieces of DVD-ROMs entitled “Dark Cloud”	Each DVD-ROM contained the game software in the PlayStation2 format entitled “Dark Cloud”.
11th (Exh P17)	4 pieces of CD-ROMs entitled “Fantavision”	Each CD-ROM contained the game software in the PlayStation2 format entitled “Fantavision”.
12th (Exh P18)	7 pieces of CD-ROMs entitled “Gran Turismo 2”	Each CD-ROM contained the game software in the PlayStation format entitled “Gran Turismo 2”.
13th (Exh P19)	10 pieces of CD-ROMs entitled “Hot Shots Golf 3”	Each CD-ROM contained the game software in the PlayStation2 format entitled “Hot Shots Golf 3”.
14th (Exh P20)	3 pieces of CD-ROMs entitled “I.Q. Remix”	Each CD-ROM contained the game software in the PlayStation2 format entitled “I.Q. Remix”.
15th (Exh P21)	5 pieces of CD-ROMs entitled “MediEvil II”	Each CD-ROM contained the game software in the PlayStation format entitled “MediEvil II”.
16th (Exh P22)	2 pieces of CD-ROMs entitled “MLB 2002”	Each CD-ROM contained the game software in the PlayStation format entitled “MLB 2002”.
17th (Exh P23)	3 pieces of CD-ROMs entitled “NCAA Final Four 2002”	Each CD-ROM contained the game software in the PlayStation2 format entitled “NCAA Final Four 2002”.
18th (Exh P24)	9 pieces of CD-ROMs entitled “NFL Game Day 2002”	Each CD-ROM contained the game software in the PlayStation2 format entitled “NFL Game Day 2002”.
19th (Exh P25)	10 pieces of CD-ROMs entitled “Okage Shadow King”	Each CD-ROM contained the game software in the PlayStation2 format entitled “Okage Shadow King”.
20th (Exh P26)	5 pieces of DVD-ROMs entitled “Parappa The Rapper 2”	Each DVD-ROM contained the game software in the PlayStation2 format entitled “Parappa The Rapper 2”.
21st (Exh P27)	6 pieces of CD-ROMs entitled “Syphon Filter 2”	Each CD-ROM contained the...