Hon Wing Book Company Limited v. Hong Kong Hon Wing Book Company(Sued As a Firm)

HCA004957/1984

Action No. 4957 of 1984

IN THE HIGH COURT OF JUSTICE

BETWEEN

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Coram: Hon. Mantell J. (In Chambers)

Date of Hearing: 2nd August, 1984.

Date of Delivery of Judgment: 2nd August, 1984.

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JUDGMENT

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1. For many years now, the plaintiff company under its present or a similar style has been carrying on business as a bookseller in Kowloon dealing mainly with textbooks for use in schools. From the evidence, it appears that they have a considerable turnover and goodwill. The name of the company is the Hon Wing Book Company Limited. I am told that the words "Hon Wing" have no particular meaning but that they do convey a favourable impression. The defendant, Mr. Lau who is unrepresented and has not filed any evidence has addressed me and I have accepted what he had to say as though it were evidence. He has opened a book shop in Des Voeux Road West also dealing very largely in books for schools; and he has called his book shop the Hong Kong Hon Wing Book Company. He has advertised the opening of the shop as being a new shop or branch as indeed, in one sense, it is. But the plaintiff fears that the public at large may think that as its business is in Kowloon and this of the defendant's is in Hong Kong, it is merely a branch of the plaintiff's to be distinguished from the Kowloon branch by the additional words "Hong Kong", the more so, because it is a book shop specialising in precisely the same kind of goods.

2. So, the plaintiff has brought an action for passing off. It is not necessary for me to speculate upon the plaintiff's chances of succeeding in that action so long as I am satisfied, as I am, that on those facts, there is a serious issue to be tried and that there is a real chance of the plaintiff succeeding, which I also find to be the case. Moreover, if successful, I would say in this case there must at least be a very good prospect of the plaintiff securing a permanent injunction.

3. The conditions are present for the making of an interlocutory injunction as I am asked to. But I have to have regard to the balance of convenience as it has been called in the leading case of American Cyanamid. ⁽¹⁾ If I think, of course, that the balance of convenience lies in favour of not granting an interlocutory injunction, then I would decline to do so notwithstanding that the conditions for making one are present. There must, of course, be a bias in favour of preserving the status quo and there is no question but that the plaintiff was first in the field with its name Hon Wing Book Company Limited. Also there is no magic in the name save that it is related to a company with an established reputation which, at the moment, the defendant does not have. Moreover, if the injunction is granted, it would only be on the basis of the plaintiff giving an undertaking in damages. Therefore, I find, the balance of convenience lies in favour of granting the injunction rather than refusing it. I propose, therefore, upon the plaintiff giving the usual undertaking in damages, to make an order in terms of the summons save that I order costs to be costs in the cause.

Representation:

Miss Cathie K.C. Wong instructed by Johnny T.K. Cheng & Co. for Plaintiff.

Defendant - in person - present.

(1) American Cyanamid v. Ethicon [1975] A.C. 396