Gotop Information Inc v. Yuen Kwai Chun t/a B52 Computer Co

DCCJ 1901/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1901 OF 2005

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BETWEEN

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Coram:  Her Honour Judge Yuen in Chamber

Date of Hearing: 26th July 2005

Date of Decision:  26th July 2005

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Reasons for Decision

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1.This is an O-14 application by the plaintiff for :-

(i)	a permanent injunction against the defendant to infringe the registered trade mark of the plaintiff;
(ii)	delivering up of infringing products;
(iii)	infringing products to be forfeited to the plaintiff or be destroyed;
(iv)	an inquiry on damages for the defendant’s infringement of the plaintiff’s trade mark.

2.In this O.14 application the defendant did not seek to dispute the plaintiff is the registered owner of a handwriting recognition system produced and sold by the plaintiff under the trade marks of “GOTOP” (with registered trade mark no. 199401020 for class number 16) registered on 11 August 1992; and under the trade mark “掌心雷Q” ( with trade mark number 200100971 for class number 9) registered on 31 March 2000.

3.According to the plaintiff a Mr. CHAN Hak Keung bought a packet of the hand recognition system software from the defendant’s shop on 14 Feb 2005. The defendant, on the other hand, seeks to suggest Mr. CHAN did not buy the said infringing product from its company. 

4.According to the affirmations of Mr. CHAN Hak Keung ( page 30 of the bundle), he bought a handwriting recognition system software from the defendant on 14/2/05. When Mr. CHAN found problem in using the software he sent the software to Everbest Technologies Limited, the maintenance company printed on the letter of guarantee supplied together with the software, for repair. Everbest Technologies Limited checked the software and found it to be an infringing copy of software.

5.The defendant suggested that all products sold by the defendant:-

(i) bore a price tag with the company name and telephone number of the defendant company;

(ii) a chop of the defendant company would be made on all warranty cards of the products sold by the defendant company; and

(iii) all products of the handwriting recognition system under the trade name of “GoTop Super Q2” were supplied by the authorized agent/ retailer/distributor: Fine Up Company Limited.

Court’s Decision

6.If the purchaser’s evidence is accepted by court, the plaintiff is perfectly entitled to all the reliefs sought in its statement of claim. The defendant, on the other hand, is disputing the credibility of the purchaser of the infringing item.

7.There was no document in support of the defendant’s suggestion, contention or possibly speculation and verging very much upon a fishing expedition at the end of the day, on the part of the defendant.

8.Be that as it may, one can hardly argue that credibility is an issue which cannot be adjudicated on affidavit. On the other hand, it is also knowledge within common parlance that it takes months for a case to reach court for trial.

9.The trading market of Hong Kong is a far moving scene. To balance the risk of irreparable damages done to the plaintiff and a deprivation of the defendant’s right to a proper trial of the case, I am minded to grant an interim injunction, which is to last until the trial of this case or until further order from the court, against the defendant in terms of the reliefs (1) and (2) sought in this summons.

10.Costs of this application should be costs in the cause of this action. Depending upon the ultimate trial on the issue of credibility of Mr. Chan, this may very well be a case suitable and appropriate for the granting of an order of  costs on an indemnity basis against the losing party.

Mr. William Lam of Messrs. William Lam & Co. for Plaintiff.

Mr. Lim Chiu-yu Alun of Messrs Littlewoods, Solicitors for Defendant.