Hoo Wah Garment Factory v. Easey Garment Factory Ltd and Another
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CACV000139/1981 Headnote Interim injunction set aside because damages readily assessible. Dates of Hearing : 22nd and 23rd of December, 1981. IN THE COURT OF APPEAL
----------------- Coram: Hon. Leonard, V.P., Cons & Zimmern, JJ.A. Dates of Hearing : 22nd and 23rd of December, 1981. Date of Judgment: 23rd December, 1981. ----------------- JUDGMENT ----------------- Cons, J.A. : 1. The first plaintiff in these proceedings is a manufacturer of jeans, which it sells through the second plaintiff in many countries of the world, in particular in the Middle East. One brand name that it uses is the word "Commando", to which it attaches at times a device in the form of two crossed swords. It has a market for these jeans in Kuwait, albeit not a large one. 2. The defendant is also a manufacturer of jeans. Not long ago it received an order from a customer in Kuwait for 12,000 pairs of jeans. The customer supplied sample jeans bearing "Commando", labels, buttons and rivets identical to those of the first plaintiff. Twelve thousand pairs, incidentally, is a figure well in excess of the total sales by the plaintiffs in Kuwait in the little over two years that it has been in that market. 3. In September, when the twelve thousand pairs were ready to be despatched, the plaintiffs came to hear of them and swiftly obtained an Anton Piller order, with consequent injunctions and orders for delivery up. The resultant inter parte summons came before Rhind J. on the 5th November, who continued the interim injunctions. He found there were serious issues to be tried in respect both of passing off and copyright. 4. With every respect to him, I am doubtful that when he did so he had in mind, except in regard to the crossed swords device, the standard suggested by Slade J. and Megarry V.C. in the two cases which Mr. Rogers has brought to our attention(1). However, it is not necessary to go into that question, for again with every respect to him, I feel he must have adopted the wrong approach with regard to whether or not the plaintiff's prospective loss can be adequately compensated by damages. 5. A comparison of what may be called the genuine and the fake jeans shows that at least to the untrained eye they are identical in every respect. Although Mr. Paul Chow, manager of the first plaintiff, has suggested that the defendant's jeans are of inferior quality, for my part, I do not find them to be so. The plaintiffs therefore are not subject to the danger that is usual in these cases, that of losing goodwill built up over many years by the flooding of the market with shoddy imitations of the genuine article. All that the plaintiffs will suffer, if they are ultimately successful in these proceedings, is the equivalent of their profit on the manufacture and sale of 12,000 pairs of jeans and perhaps of any further deliveries the defendants may risk sending to Kuwait or elsewhere before matters come to trial. I see no reason to think that the defendants will be unable to meet damages at that level and for my part I would therefore set aside the injunction granted below. Leonard, V.P. : 6. I too would set aside the injunction on the basis that there is every indication in the papers and from the jeans themselves that damages would be an adequate remedy. The penetration by the plaintiff into the market in Kuwait has been small compared even to the amount of this shipment. I have but little doubt that the plaintiff if successful would elect for an account. I have no doubt that his damages would be readily assessible. Zimmern, J.A. : 7. I also agree that the injunction should be discharged and there is nothing further I wish to add.
Representation: Anthony Rogers (Messrs. Johnson, Stokes & Master) for Appellant. Robert Kotewall (Messrs. Deacons) for Respondent. (1) Re. Lord Cable deceased (1976) 3 All England 417 at 430 and Mothercare Limited v. Robson Books Ltd. (1979) F.S.R. 466 at 471 |