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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
2017 LC CASE SUMMARIES [2017] SGHC 305 [Singapore]
Topics: Trademark Infringement; Sea Waybills
Note: Counterfeit goods bearing Louis Vuitton Malletier’s (Plaintiff) trademarks were shipped in containers from China to Singapore via Megastar Shipping Pte. Ltd (Carrier) where they were to be transshipped on to a third party in Batam, Indonesia. Singapore customs officials inspected and seized the counterfeit goods. Carrier is a freight forwarder, which received letters from a third party requesting that Carrier arrange transshipment of the containers to Batam. Carrier received the sea waybills and arrival notices for the containers. However, Carrier was neither involved in the packing of the containers nor the arrangements to ship the containers from China to Singapore. The “ultimate consignee”, the third party, was neither located nor identified and took no part in the instant litigation.
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Plaintiff sued Carrier for infringementon the basis that its trademark rights were infringed byCarrier through“‘importation’ and/or‘exportation’”. The High Court of the Republic of Singapore, Wei, J., dismissed the complaint.
The central issue was whether the Carrierwas liable for importing or exporting the goods under the Trade Marks Act (TMA). The Judge noted that while “an individual who shares a common design with a tortfeasor to commit a tort and who participates by performing an act in furtherance of that common design, is liable as a joint tortfeasor in conspiracy”, there was no evidence here that the Carrier had a common design with the importer to infringe Plaintiff’s trademark rights.The Judge further noted that “ownership of the goods represented in the sea waybill will pass by reason of the underlying transaction. Thus, in the present case, it follows that ownership and the property in the Counterfeit Goods is a matter that can only be determined by reference to the underlying transaction between [Carrier] and the Third Party.”The Judge found it clear that “[Carrier] did not acquire any property in the Counterfeit Goods simply by virtue of being named as the consignee in the sea waybills.”
The Judge also determined that “[Carrier’s] engagement by the Third Party was for the limited purpose of arranging for transhipment of the inbound Containers”, and thus,Carrier did not export the goods. The Judge found that the counterfeit goods were imported by the shippers in China or the third party and exported by the third party. The Judge ultimately ruled that the infringement action could not continue against Carrierbecause it was neither the importer nor exporter of the goods.
Comment: Could a bank that arranged financing via LCs or undertook a collection be exposed to liability?
[MMY]
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