In pork noodle seller’s (the “Plaintiff”) action against his nephew (the “Defendant”) for trade mark infringement and passing-off, the Singapore High Court (the “Court”) found that while infringement was not established, there was indeed passing-off in this case.

The Plaintiff owned a pork noodle business called “Hill Street Tai Hwa Pork Noodle” which had previously won several culinary awards. He was also the registered proprietor of the following mark in Class 29 and 30:

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In 2008, the Defendant opened a pork noodle business under the name ‘老大華’, pronounced in dialect as “Lau Dai Hua”. The Defendant also displayed the Plaintiff’s culinary awards in advertisements for “Lau Dai Hua”.

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The Court found that the Plaintiff’s specific reference to ‘老大華’ or “Lau Dai Hua” in the Plaintiff’s congratulatory message to the Defendant at the opening of the latter’s stall, amounted to the Plaintiff’s consent of the use of ‘老大華’ or “Lau Dai Hua” by the Defendant. The Court accordingly found that there was no infringement.

The Court also remarked that even if there was no consent, it was their view that there was no similarity between the Plaintiff’s mark and the Defendant’s sign. The Court held that the marks were visually dissimilar. Even if there were two similar sounding words i.e. “Tai Hwa” in the Plaintiff’s mark and “Dai Hua” in the Defendant’s sign, both written in Chinese script, the Court, on quantitative assessment of the common syllables appearing in both marks, found that there was insufficient aural commonality between the two.

Passing-off was, however, established. The Court agreed that the Defendant’s use of the Plaintiff’s culinary awards in the Defendant’s advertisements suggested a link between the Defendant’s business and the Plaintiff’s business, and that there was a likelihood of confusion as a result.

Nevertheless, the Plaintiff was only awarded nominal damages for the loss of the Plaintiff’s goodwill, as the Court found that the Plaintiff could not credibly quantify his loss arising from the Defendant’s passing-off. The Plaintiff however, was entitled to an order restraining the Defendant from the unauthorised use of the Plaintiff’s culinary awards.