Court allows Indian festival organiser’s lawsuit over copied branding

 Bench says correct test in a passing-off claim is whether an ordinary consumer with an imperfect memory would likely be misled.

A three-member Court of Appeal bench ruled that the High Court had erred by looking at individual features of the events separately instead of considering their overall impression.

PUTRAJAYA:

The Court of Appeal has allowed ASC Agenda Suria Communications Sdn Bhd’s appeal against a High Court decision that dismissed its lawsuit accusing two Indian festival organisers of copying the branding and identity of its events.

The three-member bench, chaired by Justice Choo Kah Sing, with Justices Ahmad Fairuz Zainol Abidin and Evrol Mariette Peters, ruled that the High Court had erred by looking at individual features of the events separately instead of considering their overall impression.

Delivering the judgment, Peters said ASC was not claiming exclusive rights over common words such as “Global” or “Indian”, but over the combination of features that gave its festivals a distinctive identity.

She said the correct test in a passing-off claim was whether an ordinary consumer with an imperfect memory would likely be misled.

The judge said the defendants had used several features similar to ASC’s events, including the naming structure, peacock feather motif, rainbow colour scheme, “Model Search” activity and promotional methods.

She added that the defendants, married couple R Mogana Selvi and G V Sathia Kumaran, had previously taken part in ASC’s Penang and Johor festivals in 2019, giving them knowledge of ASC’s branding.

The couple had also failed to provide a satisfactory explanation for the similarities, Peters said.

ASC, which has organised the Global Indian Festival in Kuala Lumpur for nearly 20 years and the International Indian Shopping Festival in Penang and Johor for more than a decade, had claimed that the defendants copied its “trade dress”.

It said its festivals had developed a unique identity through features such as bright colours, a peacock feather motif, rainbow designs, “Model Search” activities and specific promotional styles.

The High Court in 2024 dismissed ASC’s claim, ruling that the defendants had not passed off their events as ASC’s or caused confusion among the public.

It held that ASC could not monopolise common features such as colourful promotions or Indian cultural themes, and that businesses could compete in the same market as long as their events remained distinguishable.

The Court of Appeal disagreed, awarding RM120,000 in costs and sending the case back to the High Court to assess damages.

Lawyers S Rajashree and Rex Kuan appeared for ASC, while M Dinesh, G Devaneson and S Jeyanthi represented the respondents. - FMT