E-mail and Domain Names: PETROLIAM NASIONAL BHD & ORS V KHOO NEE KIONG (Malaysia)
© 2008 LexisNexis Asia (a division of Reed Elsevier (S) Pte Ltd)
The Malayan Law Journal
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PETROLIAM NASIONAL BHD & ORS V KHOO NEE KIONG
[2003] 4 MLJ 216
CIVIL PROCEEDINGS NO 22–623 OF 2001
HIGH COURT (PULAU PINANG)
DECIDED-DATE-1: 5 JULY 2003
SU GEOK YIAM JC
CATCHWORDS:
Civil Procedure – Parties – Proper parties to be sued, whether – Application for inter partes interim injunction to restrain defendant from publishing impugned statements on the internet – Whether defendant was person who had sent e-mails – Whether defendant was person who had operated website
Evidence – Documentary evidence – Computer printout – Application for inter partes interim injunction to restrain defendant from publishing impugned statements – Whether mandatory for plaintiffs to exhibit certificate pursuant to s 90A of the Evidence Act 1950 in respect of the computer printouts containing impugned statements in their application for the interim injunction
Tort – Defamation – Libel – Publication on internet – Application for inter partes interim injunction to restrain defendant from publishing impugned statements – Whether impugned statements calculated to injure reputation of plaintiffs – Whether impugned statements had been published to third parties – Whether plaintiffs suffered irreparable loss and damage by reason of publication – Whether plaintiffs in financial position to meet undertaking as to damages – Whether there was delay on plaintiffs’ part in bringing application
Tort – Passing off – Name of business – Domain names – Defendant registered domain names containing the word ‘Petronas’ – Application for inter partes interim injunction to restrain defendant from passing off website with domain name comprising word ‘Petronas’ – Whether defendant had eroded exclusive goodwill in the name ‘Petronas’ – Whether domain names were instruments of fraud – Whether use of domain names by defendant would result in passing off – Whether plaintiffs had shown that there was threat of passing off and trademark infringement on defendant’s part
HEADNOTES:
The first plaintiff was a well-known national petroleum corporation. The second plaintiff was one of the marketing arms of the first plaintiff and the third plaintiff was in the business of processing and transmitting natural gas and it conducted its gas business under the trade name ‘Petronas Gas’. The defendant was an individual carrying out trading operations as a registered sole proprietor under the trade/business name ‘Araneum Consulting Services’ and was in no way associated with the plaintiffs. Sometime in 2001, the plaintiffs made a series of searches of domain names on the Internet using the search engine ‘better-whois.com’ and discovered that the defendant had registered the domain names ‘petronas-dagangan.com’, ‘petronasgas.com’, ‘mypetronasdagangan.com’ and ‘mypetronas.com’ (‘the said domain names’) for purposes of sale. The defendant had also maintained a website under the name ‘www.petronasgas.com’ (‘the Petronas website’) which purported to provide information on, [*217] inter alia, the locality of the plaintiffs’ service stations. A printout of the main webpage of the Petronas website showed that it was maintained by the defendant. The Petronas website was also accessible via ‘URL HTTP://www.searchmalaysia.com’ (‘the searchmalaysia website’). On the searchmalaysia website, the domain name ‘petronasgas.com’ was described as a subsidiary of ‘searchmalaysia. com’. In response to a request from the first plaintiff to the defendant to transfer to the first plaintiff the registration of the said domain names on the ground that ‘Petronas’ was the first plaintiff’s trade name worldwide and the intellectual property rights in the trade name belonged to the first plaintiff, the defendant had published certain statements via e-mail (‘the impugned statements’) which the plaintiffs averred clearly referred to the plaintiffs and were defamatory. In this application, the plaintiffs sought the following reliefs on the grounds of passing off of domain names and defamation: (a) an inter partes interim injunction to restrain the defendant from: (i) passing off or attempting to pass off any website with a domain name comprising the word ‘Petronas’ which was not related to a website connected with the plaintiffs; (ii) making any representation to any registrar of domain names that the defendant was connected or associated with the plaintiffs and/or the name ‘Petronas’ and the goodwill subsisting therein; and (iii) registering or attempting to register on the internet any domain name containing the word ‘Petronas’; and (b) an inter partes interim injunction to restrain the defendant from publishing or posting or disseminating the impugned statements.
Held, allowing the plaintiffs’ application:
(1) The plaintiffs had shown that the name in the e-mail address was that
of the defendant and that the defendant was the sole proprietor of
Araneum Consulting Services and that both the websites were operated by
Araneum Consulting Services. The searches conducted by the plaintiffs
on the said domain names showed that the registrants were the
defendant, Araneum Consulting Services and ‘Araneum@email.com for sales’
. Further, the offensive e-mail also carried the hand phone number of
the defendant. In the circumstances of this case, the court was more
than satisfied that it was most probably the defendant who had sent the
e-mail and who had set up the webpage and it followed, therefore, that
the plaintiffs had sufficiently identified the defendant for the
purposes of the injunctive relief sought by the plaintiffs in this
application (see pp 233A –B, 235F, 236G –H).
(2) It was not mandatory for the plaintiffs to exhibit a certificate
pursuant to s 90A of the Evidence Act 1950 (‘the Act’) in respect of
the computer printouts containing the impugned statements in the
affidavit-in-support of their application for the interim injunctions.
This was because at this stage of the proceedings, the plaintiffs only
had to show a bona fide case or a serious question [*218] to be
tried and there was no necessity for the plaintiffs to show a prima
facie case. The deponent of the plaintiffs’ affidavit-in-support had
deposed that the contents of the affidavit were within his personal
knowledge unless otherwise stated. The defendant had not challenged nor
disputed the deponent’s affidavit-in-reply. The plaintiffs would only
have to tender the s 90A certificate if the plaintiffs did not wish to
call the officer who had personal knowledge as to the production of the
computer printouts by the computer to testify to that effect in the
trial proper (see pp 236H –I, 237F –H).
(3) The impugned statements were manifestly defamatory. The plaintiffs had
shown that the natural and ordinary meaning of the impugned statements
was that: (a) the plaintiffs did not have any lawful claim to any
domain name containing the word ‘Petronas’; (b) the plaintiffs were in
the habit of resorting to strong-arm tactics to oppress and intimidate
other local companies and/or local business entities; (c) the
plaintiffs were attempting or have in the past attempted to extort
money from local companies or business entities by forcing them to
transfer domain names to the plaintiffs for free; (d) the plaintiffs
consistently behaved in an arrogant or high-handed fashion to oppress
and intimidate other local companies and/or local entities; (e) the
plaintiffs had acted like a ‘robber’ and their actions may be likened
to a form of theft; and (f) the legal services department of the
plaintiffs was generally incompetent and/or ignorant. Secondly, the
plaintiffs had shown that the impugned statements were: (a) calculated
to injure the reputation of the plaintiffs by exposing them to hatred,
contempt or ridicule; (b) intended to lower the plaintiffs in the
estimation of right-thinking members of society generally; (c)
calculated to injure and disparage the plaintiffs’ reputation in the
plaintiffs’ office, profession and trade; and (d) intended to bring the
plaintiffs, by virtue of their standing, honour and integrity, into
public scandal, odium and contempt. Thirdly, the plaintiffs had
sufficiently demonstrated that the impugned statements had been
published to third parties. Fourthly, the plaintiffs had shown
that by reason of the publication of the impugned statements, the
plaintiffs had suffered grave injury to their trading personality and
irreparable loss and damage and would continue to suffer such
irreparable loss and damage. Fifthly, the court was satisfied that
there had been no improper delay on the part of the plaintiffs in
bringing this application because the existence of the Petronas website
maintained by the defendant was only discovered by the plaintiffs on or
about the end of November 2001 and the defendant’s official response to
the plaintiffs’ solicitors was only received on 5 December 2001.
Finally, the plaintiffs had given an undertaking as to damages and the
court was satisfied that the plaintiffs were in a strong financial
position to meet their undertaking should the defendant win at the
trial (see pp 240I –241F, 242E –F, H–243B).
[*219]
(4) By registering the said domain names which contained the word ‘Petronas’
, there was a serious issue to be tried in that the defendant was
making a false representation to persons who may have consulted the
register that the registrant, ‘Araneum Consulting Services’ was
connected or associated with the name registered and thus the owner of
the goodwill in the name ‘Petronas’. By registering the said domain
names, the defendant had eroded the exclusive goodwill in the name ‘
Petronas’ which had cause damage to the plaintiffs. The said domain
names were instruments of fraud and any realistic use of them as domain
names would result in passing off. This would cause irreparable injury
and damage to the plaintiffs and by virtue of this, the balance of
convenience tilted in favour of the plaintiffs. The plaintiffs had
sufficiently demonstrated that since the said domain names contained
the word ‘Petronas’, the court can assume that the intention of the
defendant in using the said domain names was to deceive the public by
passing off himself as part of the Petronas group of companies or his
business or products as those of the plaintiffs’. In the circumstances,
the plaintiffs had shown that there was a threat of passing off and
trademark infringement on the defendant’s part which was likely to
cause confusion in the minds of consumers of the plaintiffs’ products,
thereby resulting in irreparable injury and damage to the plaintiffs’
trade, business and goodwill. Therefore, as the plaintiffs had provided
an undertaking as to damages, the interim injunction sought for ought
to be granted (see p 246B –H); British Telecommunications plc and
another v One In A Million Ltd and others and other actions [1998]
4 All ER 476 followed.
Bahasa Malaysia summary
Plaintif pertama adalah satu perbadanan petroleum nasional yang terkenal. Plaintif kedua merupakan salah satu cabang pemasaran plaintif pertama dan plaintif ketiga merupakan satu perniagaan memproses dan mengalirkan gas semulajadi dan ia mengendalikan perniagaan gasnya di bawah nama dagangan ‘Petronas Gas’. Defendan adalah seorang individu yang menjalankan operasi-operasi dagangan sebagai seorang tuanpunya tunggal berdaftar di bawah nama dagangan/perniagaan ‘Araneum Consulting Services’ dan tiada kaitan langsing dengan plaintif-plaintif. Sekitar tahun 2001, plaintif-plaintif telah membuat rangkaian carian ke atas nama-nama domain dalam internet dengan menggunakan enjin carian ‘better-whois.com’ dan mendapati bahawa defendan mempunyai nama-nama domain berdaftar ‘petronas-dagangan.com’, ‘petronasgas.com’, ‘mypetronasdagangan.com’ dan ‘mypetronas.com’ (‘nama-nama domain tersebut’) bagi tujuan jualan. Defendan juga menyenggarakan satu laman web di bawah nama ‘www.petronasgas.com’ (‘laman web Petronas tersebut’) yang bertujuan memberikan maklumat tentang, antara lain, tempat stesen-stesen khidmat plaintif-plaintif. Cetakan [*220] laman web utama kepada laman web Petronas tersebut menunjukkan bahawa ia diselenggarakan oleh defendan. Laman web Petronas tersebut juga boleh dimasuki melalui ‘URL HTTP://www.searchmalaysia.com’ (‘laman web searchmalaysia tersebut’). Pada laman web searchmalaysia tersebut, nama-nama domain ‘petronasgas.com’ digambarkan sebagai satu anak syarikat ‘searchmalaysia. com’. Sebagai membalas permintaan dari plaintif kepada defendan untuk memindahkan kepada plaintif pertama nama-nama domain tersebut atas alasan bahawa ‘Petronas’ merupakan nama dagangan pertama seluruh dunia plaintif dan hak-hak harta intelektual dalam nama dagangan tersebut terletak pada plaintif pertama, defendan telah menerbitkan kenyataan-kenyataan tertentu melalui e-mel (‘kenyataan-kenyataan yang dipersoalkan’) yang plaintif-plaintif mengegaskan dengan jelas merujuk kepada plaintif-plaintif dan adalah berunsur fitnah. Dalam permohonan ini, plaintif-plaintif telah memohon relief-relief berikut atas alasan kelirupaan nama-nama domain dan fitnah: (a) satu injunksi interim inter partes untuk menyekat defendan dari: (i) kelirupaan atau cubaan untuk mengekelirupakan apa-apa laman web dengan suatu nama domain yang mengandungi nama ‘Petronas’ yang tiada kaitan dengan satu laman web yang berkaitan dengan plaintif-plaintif; (ii) membuat apa-apa representasi kepada mana-mana pendaftar nama-nama domain bahawa defendan mempunyai kaitan atau hubungan dengan plaintif-plaintif dan/atau nama ‘Petronas’ dan nama baik yang wujud; dan (iii) mendaftar atau cuba untuk mendaftar dalam internet apa-apa nama domain yang mengandungi perkataan ‘Petronas’; dan (b) satu injunksi interim inter partes untuk menyekat defendan dari menerbit atau mempos atau mengedarkan kenyataan-kenyataan yang dipersoalkan tersebut.
Diputuskan, membenarkan permohonan plaintif:
(1) Plaintif-plaintif telah menunjukkan bahawa nama dalam alamat e-mel
tersebut adalah alamat defendan dan bahawa defendan adalah tuanpunya
tunggal Araneum Consulting Services dan bahawa kedua-dua laman web
tersebut dikendalikan oleh Araneum Consulting Services. Carian-carian
yang dijalankan oleh plaintif-plaintif ke atas nama-nama domain
tersebut menunjukkan bahawa pendaftar-pendaftarnya adalah defendan,
Araneum Consulting Services dan ‘Araneum@email.com for sales’. Tambahan
pula, e-mel yang menjelikkan tersebut juuga mempunyai nombor telefon
bimbit defendan. Dalam keadaan kes ini, mahkamah lebih dari berpuashati
bahawa ia adalah berkemungkinan besar defendan yang menghantar e-mel
tersebut dan yang telah memulakan halaman web tersebut dan ia diikuti,
oleh demikian, bahawa plaintif-plaintif telah dengan memadai
mengenalpasti defendan bagi tujuan relief injunksi yang dipohon oleh
plaintif-plaintif dalam permohonan ini (lihat ms 233A –B, 235F, 236G –H).
[*221]
(2) Ia tidaklah mandatori untuk plaintif-plaintif mengekshibitkan satu
sijil menurut s 90A Akta Keterangan 1950 (‘Akta tersebut’) berhubung
ccetakan-cetakan komputer yang mengandungi kenyataan-kenyataan yang
dipersoalkan tersebut dalam afidavit sokongan permohonan mereka untuk
injunksi-injunksi interim tersebut. Ini adalah kerana di peringkat
prosiding ini, plaintif-plaintif hanya perlu menunjukkan satu kes bona
fide atau satu persoalan serius yang perlu dibicarakan dan tiada
keperluan untuk menunjukkan satu kes prima facie. Deponen kepada
afidavit sokongan plaintif telah mendeposkan bahawa isi kandungan
afidavit tersebut adalah dalam pengetahuan peribadinya kecuali
dinyatakan sebaliknya. Defendan tidak mencabar maupun mempertikaikan
afidavit jawapan deponen. Plaintif-plaintif hanya perlu menenderkan
sijil s 90A jika plaintif-plaintif tidak berhasrat untuk memanggil
pegawai yang mempunyai pengetahuan peribadi tersebut berhubung
penghasilan cetakan-cetakan komputer oleh komputer untuk memberi
keterangan mengenainya dalam perbicaraan sebenar (lihat ms 236H –I, 237F –
H).
(3) Kenyataan-kenyataan yang dipersoalkan tersebut memang berunsur fitnah.
Plaintif-plaintif telah menunjukkan bahawa maksud semulajadi dan biasa
kenyataan-kenyataan yang dipersoalkan tersebut adalah bahawa: (a)
plaintif-plaintif tidak mempunyai hak yang sah ke atas mana-mana nama
domain yang mengandungi perkataan ‘Petronas’; (b) menjadi amalan
plaintif-plaintif menggunakan taktik-taktik kekerasan untuk menindas
dan menakut-nakutkan syarikat-syarikat tempatan dan/atau entiti-entiti
perniagaan tempatan yang lain; (c) plaintif-plaintif cuba atau sebelum
ini pernah mencuba untuk memeras wang daripada syarikat-syarikat
tempatan atau entiti-entiti perniagaan dengan memaksa mereka
memindahkan nama-nama domain kepada plaintif-plaintif dengan percuma;
(d) plaintif-plaintif sentiasa bersikap angkuh atau melakukan perbuatan
menindas yang begitu angkuh untuk menindas atau menakut-nakutkan
syarikat-syarikat tempatan dan/atau entiti-entiti tempatan; (e)
plaintif-plaintif telah bertindak seperti ‘robber’ dan
tindakan-tindakan mereka boleh disifatkan sebagai membentuk pencurian;
dan (f) jabatan perkhidmatan undang-undang plaintif-plaintif secara
amnya tidak kompeten dan/atau bersikap tidak tahu. Kedua,
plaintif-plaintif telah menunjukkan bahawa kenyataan-kenyataan yang
dipersoalkan tersebut: (a) dikira akan menjejaskan reputasi
plaintif-plaintif dengan mendedahkan mereka kepada kebencian,
penghinaan atau cemuhan; (b) bertujuan untuk merendah-rendahkan
plaintif-plaintif pada anggapan masyarakat umum yang waras; (c) dikira
untuk menjejas dan merendah-rendahkan reputasi plaintif-plaintif dalam
jawatan, profesion dan dagangan plaintif-plaintif; dan (d) bertujuan
untuk menjatuhkan plaintif-plaintif, menurut kedudukan, maruah dan
integriti plaintif-plaintif, ke dalam skandal awam, rasa benci dan
penghinaan. Ketiga, plaintif- [*222] plaintif telah menunjukkan
dengan memadai bahawa kenyataan-kenyataan yang dipersoalkan tersebut
telah diterbitkan kepada pihak-pihak ketiga. Keempat, plaintif-plaintif
telah menunjukkan bahawa oleh sebab penerbitan kenyataan-kenyataan yang
dipersoalkan tersebut, plaintif-plainti telah mengalami kerosakan pada
personaliti dagangan dan kerugian yang tidak boleh diperbaiki dan akan
berterusan mengalami kerugian dan kerosakan yang tidak boleh
dipulihkan. Kelima, mahkamah berpuashati bahawa tiada kelewatan yang
tidak betul berlaku di pihak plaintif-plaintif dengan memulakan
permohonan ini kerana kewujudan laman web Petronas yang diselenggarakan
oleh defendan hanya diketahui oleh plantif-plaintif pada atau akhir
bulan November 2001 dan jawapan rasmi defendan kepada
peguamcara-peguamcara plaintif-plaintif hanya diterima pada 5 Disember
2001. Akhirnya, plaintif-plaintif telah memberikan satu akujanji
berhubung ganti rugi dan mahkamah berpuashati bahawa plaintif-plaintif
mempunyai kemampuan kewangan yang kukuhs untuk memenuhi akujanji mereka
sekiranya defendan berjaya dalam perbicaraan (lihat ms 240I –241F, 242E –
F, H–243B).
(4) Dengan mendaftar nama-nama domain yang mengandungi perkataan ‘Petronas’,
terdapat persoalan serius yang perlu dibicarakan di mana defendan
telah membuat representasi yang tidak benar kepada mereka yang pernah
berunding dnegan pendaftar bahawa si pendaftar, ‘Araneum Consulting
Services’ adalah berkaitan atau mempunyai hubungan dengan nama yang
didaftarkan dan oleh itu tuanpunya nama baik dalam nama ‘Petronas’.
Dengan mendaftar nama-nama domain tersebut, defendan telah menghakis
nama baik eksklusif dalam nama ‘Petronas’ yang telah menyebabakan
reputasi plaintif-plaintif terjejas. Nama-nama domain tersebut adalah
unsur-unsur fraud dan apa-apa penggunaan realistiknya sebagai nama-nama
domain akan mengakibatkan kelirupaan. Ini akan menyebabkan kerosakan
dan kerugian yang tidak boleh dipulihkan kepada plaintif-plaintif dan
menurut ini, imbangan kesesuaian berpihak menyebelahi
plaintif-plaintif. Plaintif-plaintif dengan memadai telah menunjukkan
bahawa memendangkan nama-nama domain tersebut mengandungi perkataan ‘
Petronas’, mahkamah boleh mengandaikan bahaw niat defendan untuk
menggunakan nama-nama domain tersebutadalah untuk memperdayakan orang
awam dengan mengelirupakan dirinya sebagai sebahagian dari kumpulan
syarikat Petronas atau perniagaan atau produk-produknya sebagai
perniagaan atau produk-produk plaintif-plaintif. Dalam keadaan ini,
plaintif-plaintif telah menunjukkan bahawa terdapat ugutan kelirupaan
dan pelanggaran tanda dagangan di pihak defendan yang berkemugkinan
menyebabkan kekeliruan pada pemikiran pengguna produk-produk
plaintif-plaintif, yang akan mengakibatkan kerosakan dan kerugian yang
tidak boleh dipulihkan kepada dagangan, perniagaan dan nama baik
plaintif-plaintif. Oleh itu, memandangkan plaintif-plaintif telah
memberikan akujanji berhubung ganti rugi, injunksi interim yang
dipohon sepatutnya diberikan (lihat ms 246B –H); British
Telecommunications plc and another v One In A Million Ltd and others
and other actions [1998] 4 All ER 476 diikut.]
Notes
For cases on documentary evidence of computer printouts, see 7(2) Mallal’s Digest (4th Ed, 2003 Reissue) paras 1104–1112.
For cases on libel, see 12 Mallal’s Digest (4th Ed, 2002 Reissue) paras 314–434.
For cases on passing off, name of business, see 12 Mallal’s Digest (4th Ed, 2002 Reissue) para 1421.
For cases on the proper parties to be sued, see 2(3) Mallal’s Digest (4th Ed, 2001 Reissue) paras 4322–4328.
Cases referred to
Alor Janggus Soon Seng Trading Sdn Bhd & Or v Sey Hoe Sdn Bhd & Ors [1995] 1 MLJ 241
American Cyanamid v Ethicon Ltd [1975] AC 396; [1975] 1 All ER 504
Bonnard v Perryman [1891] 2 Ch 269
British Telecommunications plc and another v One In A Million Ltd and others and other actions [1998] 4 All ER 476
Company of Proprietors of Selby Bridge Ltd v Sunday Telegraph Ltd (1966) 197 Estates Gazette 1077
D and L Caterers Ltd and Jackson v D’Ajou [1945] KB 3649; [1945] 1 All ER 563
Directors of Imperial Gas Light and Coke Co v Broadbent (1859) 7 HL Cas 600
Fullwood v Fullwood (1878) 9 Ch D 176
Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1
Keet Gerald Francis Noel John v Mohd Noor bin Abdullah & Ors [1995] 1 MLJ 193
Leather Cloth Co Ltd v American Leather Cloth Co Ltd (1865) 11 HL Cas 523
Lewis v Daily Telegraph Ltd, Lewis v Associated Newspapers Ltd [1963] 2 All ER 151
Linotype Co Ltd v British Empire Type-Setting Machine Co Ltd (1899) 81 LT 331
Lyan v Lipton (1914) 49 L Jo 542
Magnolia Metal Co v Tandem Smelting Syndicate Ltd (1900) 17 RPC 477
Metropolitan Saloon Omnibus Co Ltd v Hawkins (1859) 4 H & N 87
Martin v Price [1894] 1 Ch 276
New Straits Times Press (M) Bhd, The v Airasia Bhd [1987] 1 MLJ 36
Potts v Leyy (1854) 2 Drew 272
[*223]
Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] 1 Ch 149; [1953] 1 All ER 179
Quartz Hill Consolidated Gold Mining Co v Beall (1882) 20 Ch D 501
Rubber Improvement Ltd v Daily Telegraph Ltd, Rubber Improvement Ltd v Associated Newspapers Ltd [1964] AC 234
Spottiswoode v Clark (1846) 2 Ch 154
Takenaka (United Kingdom) Ltd and Anor v Frankl [2001] EWCA CIV 348
Slazengers Ltd v C Gibbs & Co (1916) 33 TLR 35
South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133
Spalding & Bros v AW Gamage Ltd (1915) 84 LJ Ch 449
Standard Chartered Bank v Mukah Singh [1996] 3 MLJ 240
United States v Smith 918 F 2d 1501
USA v Siddiqui US 11th Circuit Court of Appeals No 98-6994
Williams v Beaumont (1833) 10 Bing 260
Wood v Conway Coon [1914] 2 Ch 47
Legislation referred to
Companies Act 1965
Evidence Act 1952 ss 62 explanation 3, 90A, 90B
Federal Rules of Evidence [US] ss 901(a), (b)(4)
Petroleum Development Act 1974 s 3(1)
Tai Foong Lam (Lee Hishammuddin) for the plaintiff.
Ravin Vello (Lee Khai with him) (Tasn Beng Hong) for the defendant.
Su Geok Yiam JC::
[1] This is an application vide a summons in chambers (encl 3) by the plaintiffs for inter partes interlocutory injunctions to restrain the defendant and his agents from doing certain acts in relation to any domain name which contains the word ‘PETRONAS’ and to compel the defendant to transfer the domain name petronasgas.com to the plaintiffs.
[2] It was filed on 7 December 2001 together with a certificate of urgency (encl 4). It is supported by the plaintiffs’ affidavit affirmed by Zainalabidin bin Ismail, the General Manager (Legal) of the first plaintiff’s Corporate and Technology division on 6 December 2001 (encl 2).
Facts and background
[3] The facts and background of the case are as follows.
[4] The first plaintiff is Malaysia’s well-known national petroleum corporation. It is a fully integrated oil and gas entity engaged in a broad spectrum of petroleum and related value adding business activities ranging from upstream exploration and production of oil and gas to downstream oil refining; marketing and distribution of petroleum products; the operation and management of petrol service stations and the sale of lubricants; trading of oil and gas products; gas processing and liquefaction; gas transmission pipeline network operation; marketing of liquefied natural gas processing [*224] and liquefaction; gas transmission pipeline network operation; marketing of liquefied natural gas and liquefied petroleum gas; petrochemical manufacturing and marketing; and shipping.
[5] The first plaintiff was incorporated on 17 August 1974 under the Companies Act 1965. Pursuant to the Petroleum Development Act 1974 (‘PDA’) it is statutorily vested with the administration and stewardship of the entire oil and gas resources in Malaysia. Section 3(1) of the PDA also statutorily confers on the first plaintiff the acronym ‘PETRONAS’. The first plaintiff holds a position of high standing amongst the Malaysian public.
[6] The second and third plaintiffs are public listed companies on the Main Board of the Kuala Lumpur Stock Exchange.
[7] The second plaintiff is one of the marketing arms of the first plaintiff and interfaces with the end users and customers of PETRONAS products. it is responsible for the sale of PETRONAS products such as motor gasoline, diesel, lubricant, aviation and bunker fuel, liquefied petroleum gas (LPG) and kerosene to the general public in Malaysia. It operates an extensive network of more than 500 service stations in Malaysia under the trade name ‘PETRONAS’ in both urban and rural areas. Apart from selling gasoline and petroleum products these stations also sell car care products and other goods and services to motorists and other classes of consumers in Malaysia. Eighteen of these PETRONAS service stations are also equipped with facilities for the dispensation of natural gas for vehicles (NGV).
[8] The second plaintiff also operates plants for the bottling of liquefied petroleum gas (LPG) into metal cylinders for household and industrial use. These LPG filled metal cylinders are marketed under the trade name ‘PETRONAS’ and bear the words ‘GAS PETRONAS’ on each cylinder. These cylinders provide a source of cooking gas and are widely used in homes, restaurants, shops and stalls throughout Malaysia. Due to the long and extensive use of the trade mark ‘PETRONAS’ at service stations dispensing gasoline to motorists in villages, towns, cities and all along the main highways linking the north and south of Peninsular Malaysia and the sale of PETRONAS cooking gas in metal cylinders to millions of households and other premises throughout Malaysia, the Malaysian public has come to associate the name ‘PETRONAS’ in respect of gasoline and gas with the second plaintiff.
[9] The third plaintiff is one of the pioneers of the Malaysian gas industry. It is in the business of processing and transmitting natural gas. It conducts its gas business under the trade name ‘PETRONAS GAS’. Due to the long and extensive use of the trade mark ‘PETRONAS GAS’ in connection with the supply of gas to industrial consumers, the third plaintiff has acquired very substantial goodwill and reputation amongst the relevant trade and public and is well known by its trade name ‘PETRONAS GAS’. It has been supplying gas to the various industrial consumers since 1984 and has expanded its operations across the whole of Peninsular Malaysia and into Singapore through a network of trans-peninsular pipelines and gas processing plants.
The plaintiffs’ case
[10] As a result of the above the first, second and third plaintiffs have acquired substantial goodwill- and reputation in the name ‘PETRONAS’ both locally, among the general public and the relevant trading fraternity, and also internationally. The name ‘PETRONAS’ is distinctive of them and/or their products and services owing to long and extensive use of the name ‘PETRONAS’ in connection with all their commercial activities for almost three decades.
[11] The defendant is an individual carrying out trading operations as a registered sole proprietor under the trade/business name ‘Araneum Consulting Services’. He has his residential address at No 283, Jalan New Village, Gersik, Muar 84700 Johor Darul Takzim and his business address at 3-11-12, Desa Bistari 2, Lintang Pantai Jerjak, Gelugor, Pulau Pinang, 11700 Penang. He is in no way associated with the plaintifffs.
[12] Sometime in the year 200 1, the plaintiff made a series of searches of domain names in the internet using the search engine better-whois.com and discovered that the defendant has registered the following domain names:
(1) ‘petronas-dagangan.com’;
(2) ‘petronasgas.com’;
(3) ‘mypetronasdagangan.com’and
(4) ‘mypetronas.com’
[13] (‘the said domain names’)
[14] which contain the word ‘PETRONAS’ for purposes of sale as shown by the defendant having chosen the name ARANEUM@EMAIL.COM DOMAIN FOR SALES in order to register the said domain names.
[15] The defendant has also maintained a website under the name ‘www.petronasgas.com’ (‘the website’) which purports to provide information on the locality of the plaintiffs’ service stations and the plaintiffs’ three phase Peninsular Gas Utilisation (PGU) Project. A printout of the main webpage of the website as at 20 November 2001 shows that the website is maintained by the defendant and is called Search Malaysia. The website is also accessible via URL HTTP://www. searchmalaysia.com’. On the website, the domain name ‘petronasgas.com’ is described as a subsidiary of ‘searchmalaysia. com’.
[16] In so doing, the defendant has misrepresented to the relevant trade and public that the websites operated by the defendant under or linked to domain names incorporating the name ‘PETRONAS’ are maintained or authorized by and/or connected to the plaintiffs, that the defendant and his business are connected to or associated with the plaintiffs and/or that the products and the services of the defendant are connected to or associated with the products and services of the plaintiffs or alternatively originate from or are those of the plaintiffs, resulting in confusion and deception amongst the relevant trade and public and the plaintiffs have suffered damage as a consequence.
[17] Furthermore, in response to a request dated 16 November 2001 from the first plaintiff to the defendant to transfer to the first plaintiff the registration of the said domain names incorporating the name ‘PETRONAS’ registered by the defendant on the ground that ‘PETRONAS’ is the first plaintiffs trade name worldwide and the name ‘PETRONAS’ is actually the shortened version for ‘PETROLEUM NASIONAL BERHAD’ and the intellectual property rights in the trade-name belong to the first plaintiff, the defendant published certain statements (‘the impugned statements’) which the plaintiffs aver clearly refer to the plaintiffs and are defamatory, given their ordinary and natural meaning. The plaintiffs also aver that the defendant must be restrained on an urgent basis from further passing off the name of the plaintiffs and further publishing or repeating the impugned statements on the internet or elsewhere in view of the irreparable harm suffered or likely to be suffered by the plaintiffs which could not be compensated in the form of damages.
[18] On 6 December 2001, the plaintiffs filed a writ of summons and statement of claim (encl (1)) against the defendant seeking permanent injunctions against the defendant and damages for passing-off and defamation.
Ex parte injunctions
[19] On 11 December 2001, Md Raus J granted to the plaintiffs the ex parte injunctions sought by the plaintiffs in respect of paras (1), (2) and (4) of the plaintiffs’ application.
[20] On 14 December 2001, a copy each of the writ of summons and statement of claim, the plaintiffs’ application for ex parte injunctions and affidavit-in-support, the ex parte order and a covering letter were served personally on the defendant.
Plaintiffs’ application
[21] In this application, the plaintiffs are seeking the following reliefs on the grounds of passing off of domain names and defamation:
(1) an inter partes interim injunction to restrain the defendant from doing
the following acts:
(a) passing off or attempting to pass off any website with a domain
name comprising the word ‘PETRONAS’ which is not related to a
website connected with the plaintiffs;
(b) making any representation to any registrar of domain names that
the defendant is connected or associated with the plaintiffs
and/or the name ‘PETRONAS’ and the goodwill subsisting therein;
and
(c) registering or attempting to register on the internet any domain
name containing the word ‘PETRONAS’;
(2) an inter partes interim injunction to restrain the defendant from
publishing or posting or disseminating the impugned statements;
(3) an inter partes interim mandatory injunction compelling the defendant
to take the necessary steps to procure the transfer of the registration
of the domain name ‘petronasgas.com’ to the plaintiffs within 14 days
of the date of the order of court and not to procure the transfer of
the same to any third party; and
(4) costs in the cause.
The defendant’s case
[22] On 28 December 2001, the defendant filed his affidavit-in-reply.
[23] The defendant expressly states that he is Khoo Nee Kiong and he resides at 283, Jalan New Village, Gersik, Muar, 84700 Johor Darul Takzim. The defendant does not deny that he is the sole proprietor of Araneum Consulting Services. However, he denies that he has a trading address at 3-11-12, Desa Bistari 2, Lintang Pantai Jerjak, Gelugor, Pulau Pinang, 11700 Penang, that he is the owner of the domain names ‘mypetronasdagangan.com’ and ‘petronasdagangan.com’, that he has set up the impugned web page and that he is in charge of the website. The plaintiffs have not succeeded in showing the connection between www.mypetronas.com. and searchmalaysia.com. The defendant states that the e-mail address is not his. He also denies sending the e-mail containing the offensive statements and receiving the plaintiffs’ e-mail. The defendant further denies that he is a cyber squatter.
[24] Although the defendant does not dispute that the first plaintiff is the owner of the local domain name ‘www.petronas.com.my’ as it has been registered with MYNIC, a subsidiary of MIMOS Berhad, the defendant contends that the first plaintiff is not the holder of the registered trademark ‘PETRONAS’ in America as the domain names ‘petronas.com’ and ‘petronas.net’ are registered with Network Solutions Inc, the accredited registrar with ICANN, which has its address at 4676, Admiralty Way, Suite 330, Marina del Ray, Suite CA 902926601 USA. This contention of the defendant is based on information obtained from a search conducted at the official website of ICANN, namely, ‘www.icann.org.’. The defendant also contends that betterwhois.com is not the accredited registrar for ICANN and the information supplied by it is on as ‘as is’ basis and its accuracy is, therefore, not guaranteed.
[25] Neither is it reliable. Concerning the e-mail, they could be created and sent by mischief makers. Additionally, as the e-mail were not accompanied by a digital signature their contents including the name of the sender could be altered during transmission and at anytime thereafter.
Plaintiffs’ affidavit-in-reply
[26] On 7 January 2002, the plaintiffs filed their affidavit-in-reply (encl (10)) affirmed on 31 December 2001 by Zainalabidin bin Ismail to the defendant’s affidavit-in-reply.
[27] The plaintiffs assert that the defendant’s denials that he owns the website www.petronasgas.com at URL://128.241.196.124/petronasgas/, [*228] that there is a connection between the website and www.searchmalaysia.com and that the website www.search malaysia.com is owned by him is not credible in view of the contents of the plaintiffs’affidavit-in-support.
[28] Furthermore, the webpage ‘about us’ printed out from the website www.searchmalaysia.com state that the website is the initiative of Araneum Consulting Services Sdn Bhd and that it was launched on 1 April 2000. The mailing address is also stated, namely, Araneum Consulting Services, 3-11-12, Desa Bistari 2, Lintang Pantai Jerjak, Gelugor 11700, Penang. It also states that the website can be reached at its e-mail address of searchmalaysia@yahoo.com.
[29] Subsequently, however, these webpages have been changed. Prior to the change, the plaintiffs had made a search on the website using the search engine ‘Wayback Machine’ on an internet archive known as ‘Internet Archive’.
[30] In conclusion, the plaintiffs prayed for order in terms of their application for the inter partes injunctions on the ground that in view of the evidence adduced by the plaintiffs and exhibited in the plaintiffs’ affidavit-in-support, the defendant’s denials are bare denials.
Interim consent order
[31] On 2 January 2002, Mohd Noor Abdullah J recorded an interim consent order for the interim injunctions to continue pending the disposal of the plaintiffs’ application on an inter partes basis.
Decision of the court
[32] On 26 February 2003, having considered the plaintiffs’ application in the light of the submissions of and authorities cited by both the learned counsels I granted order in terms of paras (1) and (2) of the plaintiffs application for prohibitory orders with costs in the cause (‘the said order’). I made no order in respect of para (3) of the plaintiffs application for a mandatory injunction as events had overtaken the plaintiffs’ application. The events are that since the filing of the application by the plaintiffs in the instant case, the plaintiffs had filed a complaint with WIPO on 26 July 2002 concerning the dispute regarding the domain name ‘petronasgas.com’ and in September/October 2002 WIPO decided that the domain name be transferred to the first plaintiff. Therefore, para (3) of the plaintiffs’ application for a mandatory order for the transfer to the defendant of the domain name ‘petronasgas.com’ had ceased to be relevant.
Issues
[33] In making the said order, I had to consider the following issues which had arisen for the determination of the court:
(1) whether the identity of the sender of the e-mail, the author of the
webpage and the operator of the website has been sufficiently
established;
(2) whether it is mandatory for the plaintiffs to exhibit a certificate
pursuant to s 90A of the Evidence Act 1952 in respect of the computer
printouts containing the impugned statements;
(3) whether the impugned statements are manifestly defamatory and if so,
whether an interlocutory injunction should be granted to restrain their
further publication by the defendant; and
(4) whether the impugned statements constitute passing off and if so,
whether an interlocutory injunction should be granted to restrain
further passing off by the defendant.
The internet and domain name
[34] Before giving the reasons why I made the said order, I shall reproduce below the following description of the internet by Rahul Matthan in his book on The Law Relating to Computer and the Internet published in 2000 by Butterworth India New Delhi, at pp 57–59:
The internet is a giant network of individual computers which are
interconnected through a complicated structure of servers and designed
to withstand a nuclear attack. From its inception, the network was
designed to be a decentralized, self-maintaining series of links
between computers and–computer networks, capable of rapidly
transmitting communications without any direct human involvement or
control. Further, the system was specifically designed to automatically
re-route communications, if one or more individual links were damaged
or unavailable. Thus, the system of linked computers was designed to
allow vital research and communications to continue, even if some
portions of the network were damaged as a result of enemy aggression or
war.
To achieve this type of resilience in the communication medium, the
creation of multiple links to and from each computer (or computer
network) on the network was encouraged. Thus, a computer located in one
location, may be linked through dedicated telephone lines to other
computers in other locations. Each of those computers could in turn be
linked to other computers, which themselves would be linked to several
other computers. Thus, a communication sent over the network could
travel over any one of a number of routes to its destination. If the
network finds that the message cannot for any reason, travel along a
particular path (because of military attack, technical glitch, or any
other reason), the network is configured to automatically re-route the
message through a different feasible route. This type of transmission
and re-routing, would normally occur in a matter of seconds.
As a result of this type of structure, the fact of the matter is that
no single entity is responsible or even capable of managing or
regulating the internet. It exists and functions as a result of the
fact that hundreds of thousands of separate operators of computers and
computer networks, independently decided to use common data transfer
protocols, to exchange communications and information with other
computers (which in turn exchange communications and information with
still more computers). There is no centralized storage location,
control point, or communication channel for the internet, and it would
not be technically feasible for a single entity to control all the
information conveyed on the internet.
It is also pertinent to note that there is relatively no regulation as
to the type of persons who are permitted to access the internet. Thus,
internet access is [*230] normally freely available to students
and members of educational institutions, while there are a host of
commercial internet service providers who allow subscribers to access
the internet for a fee. In India, the Videsh Sanchar Nigam Limited and
various private Internet Service Providers provide Internet access
through a number of schemes and without any restriction on the nature
of persons permitted to avail of the service.
Once an individual has access to the internet, he/she can use a variety
of services such as FTP (File Transfer Protocol), Telnet, email and the
World Wide Web to receive and transfer information. Given the nature of
the internet, none of these activities regarding the posting or receipt
of information can be successfully regulated. Thus, anyone of the users
of the internet can post information on the internet which could,
theoretically, be accessible by every single person logging on to the
internet, without any government or other entity being in a position to
prevent him/her from doing so.
[35] I also reproduce below the following excerpt from the judgment of Aldous LJ in British Telecommunications plc and another v One In A Million Ltd and others and other actions [1998] 4 All ER 476 at pp 480-481 which explains in very simple terms what is the internet and which also adopts the explanation by the learned trial judge, Jonathan Sumption QC sitting as a deputy judge of the High Court on what is a domain name:
At its simplest the internet is a collection of computers which are
connected through the telephone network to communicate with each other.
As explained by the judge ([1998] FSR 265 at p 267):
‘The internet is increasingly used by commercial organisations to
promote themselves and their products and in some cases to buy
and sell. For these purposes they need a domain name identifying
the computer which they are using. A domain name comprises groups
of alphanumeric characters separated by dots. A first group
commonly comprises the name of the enterprise or a brand name or
trading name associated with it, followed by a ‘top level’ name
identifying the nature and sometimes the location of the
organisation. Marks & Spencer, for example, have a number of
domain names, including marks-and-spencer.co.uk,
marks-and-spencer.com and stimichael.com. The domain name
marks-and-spencer.co.uk, for example, will enable them to
have an e-mail address in the form johnsmith@marks-and-spencer.
co.uk and a web site address in the form http://www.
marks-and-spencer.co.uk. The top level suffix co.uk indicates a
United Kingdom company. Other top level names -bear conventional
meanings as follows:
• com International commercial organtisations
• edu Educational organisation
• gov Government organiation
• org Miscellaneous organisations
There is an argument, which does not matter, about whether this
last designation is confined to non-profit-making organisations.
There is no central authority regulating the internet, which is
almost entirely governed by convention. But registration services
in respect of domain names are provided by a number of
organisations. Network Solutions Inc of Virginia in the United
States is the organisation generally recognized as responsible
for allocating domain names with the top level suffixes
[*231] ‘com’ and ‘edu’. In the United Kingdom a company
called Nominet UK provides a registration service in respect of
domain names ending with the geographical suffix uk preceded by
functional suffixes such as co, org. gov or edu.’
Nominet UK applied to intervene in this appeal. It is a ‘not for profit’
limited company, which is registered with the Internet Assigned
Numbers Authority. It operates what is known as the Register Database,
which contains the domain names and IP addresses for co.uk, net.uk, ltd.
uk and plc.uk and full details of the registrant of the domain name and
its registration agent. It charges a fee for its service. From time to
time (eg every two hours or so) the information on the database is
extracted to a number of domain name servers. Domain name servers are
computers which hold the index of names which map to particular numbers
used in intercomputer transactions. For example, if I wanted to contact
Marks & Spencer plc, I can use the domain name marks-and spencer.co.
uk. The domain name server will recognize the domain name and provide
the appropriate sequence of numbers, called the IP address. It is that
address which identifies the computer owned by Marks & Spencer plc,
thereby enabling my computer to contact that owned by Marks &
Spencer plc.
As part of its service Nominet offers a ‘Whois’ service to the public.
Thus the public can type in a domain name on Nominet’s website and
press the appropriate button to execute the ‘Whois’ search. The answer
sets out the recorded information on the organisation or person who has
registered the domain name. This is useful if, for example, a person
wishes to contact the owner of a domain name.
Members of the public would not ordinarily have a domain name. They
would subscribe to a service provider and have an e-mail address. That
enables a subscriber to send a message to another computer through the
service provider, which forwards the message when requested to the
appropriate computer. The subscriber can also browse around the world
wide web and seek web pages associated with a particular domain name.
Thus if he transmits a domain name to his service provider, it will
contact the domain name and the web pages sought and provide the
information obtained.
Web sites are used for many activities such as advertising, selling,
requesting information, criticism and the promotion of hobbies.
Identifying the defendant
[36] The defendant has relied on the case of Takenaka (United Kingdom) Ltd and Anor v Frankl unreported, QB, Alliot J 11 October 2000 upheld on appeal [2001] EWCA CIV 348 to support his contention that the plaintiffs here should have obtained disclosure orders in the nature of a Norwich Pharmacal order against various internet service providers to ascertain the identity of the sender of the e-mail before suing the defendant as the defendant has denied that he is the sender of the e-mail or that he is in any way connected with the website and webpage containing the impugned statements.
[37] In that case, the defendant steadfastly denied that he was the author of the defamatory e-mail in question. In the course of identifying the defendant to enable it to commence proceedings, the claimants obtained disclosure orders against various internet service providers. Nevertheless, the decision in that case does not favour the defendant here because in that case although the court also appointed an expert who conducted a detailed [*232] forensic examination of the computer, ultimately the expert delivered an opinion that the e-mail had been sent by the defendant. The court accepted his opinion and liability was established against the defendant in that case.
[38] In my judgment, the plaintiffs have shown that the name in the e-mail address is that of the defendant, that the defendant is the sole proprietor of Araneum Consulting Services and that both the websites are operated by Araneum Consulting Services. From the search conducted by the plaintiffs on the Registrar of Businesses, the business of Araneum Consulting Services is that of ‘Management consultant, commission agent, internet home page design consultant, quality, productivity and manufacturing consultant’.
[39] It follows that the defendant is not a stranger to the internet, nor the webpages and websites in the internet. More importantly, using the search engine Better-whois.com which is a more reliable search engine than its predecessor Whois.com the search conducted by the plaintiffs on the domain name ‘petronasgas.com’ clearly shows as follows:
Registrant:
Araneum Consulting Services
283 Jalan Gelugor, Penang 11700 MY
Registrar: Dotster (http://www.doster.com)
Domain Name: PETRONASGAS.COM
Created on: 06-NOV-01
Expires on: 06-NOV-02
Last Updated on: 06-NOV-0 1
Administrative Contact:
Khoo, nk Khoo @ searchmalaysia.com
Araneum Consulting Services
3-11-12 Desa Bistari 2,
Lintang Pantai Jerjak,
Gelugor, Penang 11700
MY
6017-4772401
Technical Contact:
khoo, nk khoo @ searchmalaysia.com
Araneum Consulting Services
3-11-12 Desa Bistari 2
Lintang Pantai Jerjak,
Gelugor, Penang 11700
MY
6017-4772401.
[40] A similar search conducted on the domain name ‘mypetronas.com’ clearly shows as follows:
Registrant:
NKKHOO (MYPETRONAS2-DOM)
3-11-12, DESA BISTARI 2,
LINTANG PANTAI JERJAK,
GELUGOR, PENANG
PG 11700
MY
MY
Domain Name: PETRONASGAS.COM
Administrative Contact, Billing Contact:
Webmaster, ACS NEE (KNK5) araneum@EMAIL.COM
ARANEUM CONSULTING SERVICES
3-11-12 Desa Bistari II,
Lintang Pantai Jerjak,
Gelugor,
Penang
11700
MY
+604-6552401 8108215318.
[41] Another similar search conducted on the domain name ‘petronas-dagangan.com’ clearly shows as follows:
Registrant:
ARANEUM@EMAIL.COM DOMAIN FOR SALES (PETRONAS-DAGANGAN-COM)
3-11-12, DESA BISTARI II,
LINTANG PANTAI JERJAK,
GELUGOR, PENANG
PG 11700
MY
Domain Name: PETRONASDAGANGAN.COM
Administrative Contact, Billing Contact:
Webmaster, ACS NEE (KNKS) araneum@EMAIL.COM
ARANEUM CONSULTING SERVICES
3-11-12 Desa Bistari II,
Lintang Pantai Jer ak,
Gelugor,
Penang
11700
MY
+604-6552401 8108215318.
[42] A further similar search conducted on the domain name ‘mypetronasdagangan.com’ clearly shows as follows:
Registrant:
ARANEUM@EMAIL.COM DOMAIN FOR SALES
(MYPETRONASDAGANGAN-COM)
3-11-12, DESA BISTARI II,
LINTANG PANTAI JERJAK,
GELUGOR,
PENANG
PG 11700
MY
Domain Name: MYPETRONASDAGANGAN.COM
Administrative Contact, Billing Contact:
Webmaster, ACS NEE (KNK5) araneum@ EMAIL.COM
ARANEUM CONSULTING SERVICES
3-11-12 Desa Bistari II,
Lintang Pantai Jerjak,
Gelugor,
Penang
11700
MY
+604-6552401 8108215318.
[43] As some of the domain names containing the word ‘PETRONAS’ are juxtaposed with vulgar and obscene words as set out and repeated in the impugned statements one would have thought that upon these been brought to the knowledge of the defendant he would have taken immediate steps towards establishing the true identity of the sender if it was not himself and to lodge a police report in order to protect himself and the goodwill of his business.
[44] The offensive e-mail also carry the handphone number of the defendant. In a case like the present the defendant cannot just merely sit back and deny that he did not send the offensive e-mail and state that the email address of his company Araneum Consulting Servicse is sales@araneum.com.my. As a reasonable person who is in the business of providing quality and internet consultancy services, he is expected to do more than that. His reply dated 4 December 2001 to the plaintiffs’ letter of 26 November 2001 expresses no shock at its contents. On the contrary, the defendant, although stating that he found the first plaintiffs letter too disturbing to his business activities, merely says, inter alia, as follows:
Araneum Consulting Services has no authorized person to communicate
with your client prior to 28 November 2001. Therefore we would like to
categorically to deny our company had sent out emails or posted any
electronic messages to your client/ICANN/Soc.Culture.
Malaysia/Internet/other medias.
We deem your statements in the letter are baseless accusations without
supported by any concrete evidence. For your reference,- our company
website, www.araneum.com.my has never published any defamatory
statements against anyone. Besides that, we has did not use email to
[*235] communicate with our clients or outsiders or business or
legal matters for the security reason since one year ago.
[45] In his second reply dated 4 December 2001, the defendant has acknowledged receiving one unregistered letter (TFL/SAM/22347/01) dated 26 November 2001 from Lee Hishammuddin on 4 December 2001 addressed to 3-11-12, Desa Bistari 2, Lintang Pantai Jerjak, Gelugor 11700 Penang.
[46] The court also notes that the defendant’s first reply dated 28 November 2001 is a response to the first plaintiffs first letter dated 16 November 2001. It is addressed as follows:
Corporate Services & Technology
Legal & Corporate Affairs Division
Level 68, Tower 1,
Petronas Twin Tower, 50088 Kuala Lumpur
Attn: Encik Zainalabidin Ismail
[47] Although the defendant has disputed in encl (9) that he has a business address at ‘3-11-12 Desa Bistari 2, Lintang Pantai Jerjak, Gelugor 117009 Penang’ (‘the said address’) yet it was indeed strange that he was able to receive the first plaintiff’s first letter dated 16 November 2001 which according to the plaintiffs was sent to the defendant at the said address and which according to the defendant he had collected at the ‘Ibu Pejabat Pos Georgetown’ on 26 November 2001. He has not explained how this could have happened. He has also not explained how he was able to receive the first plaintiffs second letter dated 26 November 2001 which was also addressed to the said address since he has stated in his first affidavit-in-reply that the business address of Araneum Consulting Services is 283, Jalan New Village, Gersik 84700 Muar, Johor.
[48] In his second reply dated 4 December 2001, the defendant has stated that the number 04-6552401 (which bears the area telephone code for Penang) is a home phone number and is entirely used for his personal matters. Yet he has sworn in his affidavit-in-reply (encl (9)) that his address is 283, Jalan New Village, Gersik, Muar 84700 Johor Darul Takzim (which has a different area telephone code).
[49] Furthermore, he does not even request for a copy of the e-mail and webpage with a view to tracing and ascertaining who could have sent the e-mail and designed the webpage if in fact he had no hand in it. The court finds his response grossly indifferent and unreasonable.
[50] In the circumstances of this case, I am more than satisfied that it was most probably the defendant who had sent the e-mail and who had set up the webpage and it follows, therefore, that the plaintiffs have sufficiently identified the defendant for the purposes of the injunctive relief sought by the plaintiffs in this application.
Section 90A of Evidence Act 1952
[51] Whether it is mandatory for the plaintiffs to exhibit a certificate pursuant to s 90A of the Evidence Act 1952 in respect of the computer printouts containing the impugned statements in its affidavit-in-support of their application for the interim injunctions?
[52] Explanation 3 to s 62 of the Evidence Act 1950 renders a document produced by a computer primary evidence.
[53] Section 90A of the Evidence Act 1952 provides for the admissibility of documents produced by a computer. It reads as follows:
Documents Produced by a Computer
(1) In any criminal or civil proceeding a document produced by a
computer, or a statement contained in such document, shall be
admissible as evidence of any fact stated therein if the document
was produced by the computer in the course of its ordinary use,
whether or not the person tendering the same is the maker of such
document or statement.
(2) For the purposes of this section it may be proved that a
document was produced by a computer in the course of its ordinary
use by tendering to the court a certificate signed by a person
who either before or after the production of the document by the
computer is responsible for the management of the operation of
that computer, or for the conduct of the activities for which
that computer was used.
(3) (a) …
(b) …
(4) …
(5) …
(6) A document produced by a computer, or a statement contained
in such document, shall be admissible in evidence whether or not
it was produced by the computer after the commencement of the
criminal or civil proceeding or after the commencement of any
investigation or inquiry in relation to the criminal or civil
proceeding or such investigation or inquiry, and any document so
produced by a computer shall be deemed to be produced by the
computer in the course of its ordinary use.
(7) …
[54] In my judgement, the above issue should be decided in the negative. The reason is that the plaintiffs need only show a bona fide case serious question to be tried at this stage of the proceedings and there is no necessity for the plaintiffs to show a prima facie case. The deponent of the plaintiffs’ affidavit-in-support, Zainalabidin bin Ismail, has deposed that the contents of the affidavit are within his personal knowledge unless otherwise stated. The defendant has not challenged nor disputed this assertion of Zainalabidin bin Ismail in the defendant’s affidavit-in-reply. Therefore, in my view there is no necessity for the plaintiffs to exhibit a s 90A certificate in his affidavit-in-support of the plaintiffs’ application in respect of the computer printouts containing the impugned statements. The reason is because the plaintiffs need only tender the s 90A certificate if the plaintiffs do not wish to call the officer who has personal knowledge as to the production of the computer printouts by the computer to testify to that effect in the trial proper (see the cases of Gnanasegaran a/l Pararajasingam v Public Prosecutor [1997] 3 MLJ 1 and Standard Chartered Bank v Mukah Singh [1996] 3 MLJ 240).
[55] Section 90B of the Evidence Act 1950 deals with the weight to be given to a document produced by a computer admitted by the court pursuant to s 90A of the Evidence Act 1950. It provides as follows:
In estimating the weight, if any, to be attached to a document, or a
statement contained in a document, admitted by virtue of s 90A, the
court —
(a) may draw any reasonable inference from circumstances relating
to the document or the statement, including the manner and
purpose of its creation, or its accuracy or otherwise;
(b) shall have regard to —
(i) the interval of time between the occurrence or
existence of the facts stated in the document or statement,
and the supply of the relevant information or matter into
the computer; and
(ii) whether or not the person who supplies, or any person
concerned with the supply of, such information or the
custody of the document, or the document containing the
statement, had any incentive to conceal or misrepresent all
or any of the facts stated in the document or statement.
[56] The American case of USA v Siddiqui , US 11th Circuit Court of Appeals No 98-6994 which was cited by Mr Ravin Veloo, the learned defence counsel, is illuminating. In that case, one Siddiqui had challenged the district court’s admission into evidence of e-mail on the ground of the government’s failure to show with reliability who sent the e-mail. He claimed that the district court abused its discretion by allowing the government to offer the e-mail into evidence without proper authentication. The Court of Appeals applied s 901(a) and s 901(b)(4) of the Federal Rules of Evidence which provides several general methods of authentication and held that a number of factors supported the authenticity of the e-mail.
[57] Section 901(a) of the Federal Rules of Evidence provides that documents must be properly authenticated as a condition precedent to their admissibility ‘by evidence sufficient to support a finding that the matter in question is what its proponent claims.’ Section 901(b)(4) of the Federal Rules of Evidence further provides that a document may be authenticated by ‘appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.’
[58] It was held in another American case, United States v Smith 918 F 2d 1501, 1510 that the ‘government may authenticate a document solely through the use of circumstantial evidence including the document’s own distinctive characteristics and the circumstances surrounding its discovery.’
[59] Similarly here, in my judgement, the plaintiffs can rely on circumstantial evidence to show that the defendant is the author and sender of the impugned statements contained in the e-mail and web page as the provisions of the Evidence Act 1952 in particular s 62, s 90A, s 90B, and s 3 which defines ‘document’ to include, inter alia, any electronic … data whatsoever can be utilized for this purpose although there is no specific reference to e-mail or webpage or website.
Defamation
[60] In English Law, speaking generally, every man is entitled to his good name and to the esteem in which he is held by others and has a right to claim that his reputation shall not be disparaged by defamatory statements made [*238] about him to a third person or persons without lawful justification or excuse (see Halsbury’s Laws of England (4th Ed) Vol 28, para 1, p 3).
[61] A corporate body may maintain an action for defamation in the same way as an individual (see Metropolitan Saloon Omnibus Co Ltd v Hawkins (1859) 4 H & N 87 at p 90 per Pollock CB; approved in South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 (CA) at p 142 and also Williams v Beaumont (1833) 10 Bing 260). However, the imputation must reflect upon the company or corporation itself and not upon its members or officials only (see South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 (CA) at p 141 per Lord Esher MR).
[62] A trading company or corporation has a trading reputation and can maintain an action for libel or slander in respect of a statement that injures its trade or business (see South Hetton Coal Co Ltd v NorthEastern News Assocition Ltd (libel); D and L Caterers Ltd and Jackson v D’Ajou [1945] KB 3649, [1945] 1 All ER 563 (CA) (slander); Linotype Co Ltd v British Empire Type-Setting Machine Co Ltd (1899) 81 LT 331 (HL); Slazengers Ltd v C Gibbs & Co (1916) 33 TLR 35; and Lyan v Lipton (1914) 49 L Jo 542). The company is not required to prove that it has suffered special damage, such as financial loss (see Company of Proprietors of Selby Bridge Ltd v Sunday Telegraph Ltd (1966) 197 Estates Gazette 1077). It may recover damages for the injury to its goodwill (see Rubber Improvement Ltd v Daily Telegraph Ltd, Rubber Improvement Ltd v Associated Newspapers Ltd [1964] AC 234 at p 262; sub nom. Lewis v Daily Telegraph Ltd, Lewis v Associated Newspapers Ltd [1963] 2 All ER 151 at p 156 (HL) per Lord Reid; see also South Hetton Coal Co Ltd v North-Eastern News Association Ltd at p 143 per Lopes CJ).
[63] The general rule is that to entitle a plaintiff to an interlocutory injunction he must satisfy the court that his claim is not frivolous or vexatious and that there is a serious question to be tried (see American Cyanamid v Ethicon Ltd [1975] AC 396, [1975] 1 All ER 504 (HL); Keet Gerald Francis Noel John v Mohd Noor bin Abdullah & Ors [1995] 1 MLJ 193; and Alor Janggus Soon Seng Trading Sdn Bhd & Or v Sey Hoe Sdn Bhd & Ors [1995] 1 MLJ 241).
[64] However, different principles apply to the grant of an interlocutory injunction in defamation cases because of the right of free speech although the court has jurisdiction to restrain the publication of defamatory statements, if necessary, on an interlocutory application (see Quartz Hill Consolidated Gold Mining Co v Beall (1882) 20 Ch D 501 (CA)).
[65] An interlocutory injunction will not be granted in defamation cases when the defendant swears that he will be able to justify the libel and the court is not satisfied that he may not be able to do so (Bonnard v Perryman [1891] 2 Ch 269 (CA)).
[66] In Malaysia, in the case of The New Straits Times Press (M) Bhd v Airasia Bhd [1987] 1 MLJ 36 at p 38, Abdul Hamid Ag LP (now LP (rtd)) in delivering the judgment of the Federal Court and having stated succinctly the law regarding the grant of interlocutory injunctions in defamation cases in the following terms:
There is, in law, no doubt that ‘the High Court may grant an
interlocutory injunction restraining the defendant, whether by himself
or by his servants or agents or otherwise, from publishing or further
publishing matter which is defamatory or of malicious falsehood. It is
not necessary to show that there has already been an actionable
publication or that damage has been sustained. In appropriate cases an
injunction may be granted ex parte and before the issue of a writ.’
(Halsbury’s Laws of England (4th Ed) Vol 28, para 166).
[67] nevertheless, proceeded to express the following caution:
However, in deciding whether or not to grant an interlocutory
injunction the court must exercise its discretion judicially. It is of
cardinal importance to bear in mind that:
‘Because of the court’s reluctance to fetter free speech and
because the questions that arise during the proceedings, such as
whether the meaning is defamatory, whether justification or fair
comment are applicable and as to malice, are generally for the
jury, interlocutory injunctions are granted less readily in
defamation proceedings than in other matters and according to
different principles.’ Halsbury’s Law of England (4th Ed) Vol 28,
para 167 (see Quartz Hill Consolidated Gold Mining v Beall
(1882) 20 Ch D 561).’
[68] In Bonnard v Perryman , Lord Coleridge CJ delivering the judgment of the court in which Lord Esher MR, and Lindley, Bowen and Lopes LJJ concurred, emphasized that:
The right of free speech is one which it is for the public interest
that individuals should possess, and indeed, that they should exercise
without impediment so long as no wrongful act is done; and, unless an
alleged libel is untrue, there is no wrong committed; but, on the
contrary, often a very wholesome act is performed in the publication
and repetition of an alleged libel. Until it is clear that an alleged
libel is untrue, it is not clear that any right at all has been
infringed; and the importance of leaving free speech unfettered is a
strong reason in cases of libel for dealing most cautiously and warily
with the granting of interim injunctions. We entirely approve of, and
desire to adopt as our own, the language of Lord Esher, MR in Coulson
v Coulson — ‘To justify the court in granting an interim injunction
it must come to a decision upon the question of libel or no libel,
before the jury have decided whether it was a libel or not. Therefore
the jurisdiction was of a delicate nature. It ought only to be
exercised in the clearest cases, where any jury would say that the
matter complained of was libellous, and where, if the jury did not so
find, the court would set aside the verdict as unreasonable.
[69] His Lordship also said as follows:
Authorities do also show that the principle that there shall be no
interim injunction if defence is raised ‘applies not only to the
defence of justification’ (Bonnard v Perryman ), ‘but also to the
defence of privilege’ (Quartz Hill Consolidated Gold Mining v Beall
), and ‘fair comment’ (Fraser v Evans & Ors ). In accordance
with the long established practice in defamation action, the principles
enunciated by the House of Lords in American Cyanamid v Ethicon
Ltd relating to interim injunctions are not applicable in action for
defamation. (Herbage v Pressdram Ltd ).
[70] In my judgment, the impugned statements in the instant case are manifestly defamatory as the following conditions have been satisfied. First, the natural [*240] and ordinary meaning of the impugned statements which also includes their inferential meaning is, inter alia, as follows:
(1) that the plaintiffs do not have any lawful claim to any domain name
containing the word ‘PETRONAS’;
(2) that the plaintiffs are in the habit of resorting to strong-arm tactics
to oppress and intimidate other local companies and/or local business
entities;
(3) that the plaintiffs are attempting or have in the past attempted to
extort money from local companies or business entities by forcing them
to transfer domain names to the plaintiffs for free;
(4) that the plaintiffs consistently behave in an arrogant or high-handed
fashion to oppress and intimidate other local companies and/or local
entities;
(5) that the plaintiffs have acted like a ‘robber’ and their actions may be
likened to a form of theft; and
(6) the legal services department of the plaintiffs is generally
incompetent and/or ignorant.
[71] Secondly, the plaintiffs have shown that the impugned statements were:
(1) calculated to injure the reputation of the plaintiffs by exposing them
to hatred, contempt or ridicule;
(2) intended to lower the plaintiffs in the estimation of right-thinking
members of society generally;
(3) calculated to injure and injure and disparage the plaintiffs’
reputation in the plaintiffs’ office, profession and trade; and
(4) intended to bring the plaintiffs, by virtue of their standing, honour
and integrity, into public scandal, odium and contempt.
[72] Thirdly, the plaintiffs have sufficiently demonstrated that the impugned statements have been published to third parties as follows:
(1) the first ICANN e-mail;
(2) the second ICANN e-mail;
(3) the statements on the website;
(4) the first soc.culture.malaysia posting; and
(5) the second soc.culture.malaysia posting.
[73] ICANN is the Internet Corporation for Assigned Names and Numbers. It is an international organisation which dispenses the top level domain names. It was formed to assume responsibility for the Internet Protocol address spare allocation, protocol parameter assignment, domain name system management, and root server system management functions previously performed under US Government contract by other entities. The Board of Directors of ICANN comprises nine persons. The staff of ICANN comprises 16 persons.
[74] The statements on the website are accessible by every single internet user in the world accessing the URL http://www.petronasgas.com by [*241] directly keying in this URL or by keying in ‘PETRONAS’ to an internet search engine.
[75] Soc.culture.malaysia is a Usenet facility which enables authors to publish material to readers worldwide. Authors submit articles, known as postings, to the Usenet news server based at its local service provider which then disseminates the postings via the newsgroup. The postings may be placed on a newsgroup dealing with a certain subject, and may be ultimately distributed and stored on the news servers of all services providers that offer usenet facilities.
[76] The transmission of a defamatory posting from the storage of a new server is in effect a publication of that posting to any subscriber who accesses that newsgroup containing that posting.
[77] In the instant case, there is a bona fide serious question to be tried that the soc.culture.com postings were e-mailed from the defendant’s computer to the soc.culture.com Usenet facility. Subsequently, it may have been accessible to all subscribers of the particular newsgroup in which it was placed.
[78] The defence is one of denial, i.e. that the defendant did not send the impugned statements. The defendant is not relying on the defence of justification, privilege or fair comment on a matter of public interest.
[79] Nevertheless, I am satisfied that the impugned statements clearly refer to the plaintiffs. It is also clear that the impugned statements are obviously untrue, are defamatory of the plaintiffs and were written with the sole intention of identifying and defaming the plaintiffs.
[80] Fourthly, the plaintiffs have shown that by reason of the publication of the impugned statements, the plaintiffs have suffered grave injury to their trading personality and irreparable loss and damage and will continue to suffer such irreparable loss and damage.
[81] The plaintiffs have also shown that the defendant has by publishing the impugned statements libeled the plaintiffs and there is reason for the court to believe that as a result of the repetition of the impugned statements by the defendant on numerous occasions and the defendant’s threat of republication in its invitation to readers of the statements on the website to ‘spread this bully case worldwide’ that publication or further publication of the impugned statements is threatened or intended and that if it takes place the plaintiffs will suffer immediate and irreparable injury and damage to the plaintiffs’ trading reputation because the impugned statements could be further published to an unlimited number of internet users including local and foreign industry players and corporations. Therefore, an interlocutory injunction should be granted to restrain the defendant from further defaming the plaintiffs on the internet which is a borderless unrestricted environment or elsewhere.
[82] Fifthly, the court is satisfied that there has been no improper delay on the part of the plaintiffs in bringing this application because the existence of the website www.petronasgas.com maintained by the defendant, purporting to be a ‘subsidiary of the searchmalaysia.com’ and purporting to provide [*242] information on the locality of the plaintiffs’ service stations and three-phase Peninsular Gas Utilization (PGU) project and displaying the impugned statements was only discovered by the plaintiffs on or about the end of November 2001 and the defendant’s official response to Messrs Lee Hishammuddin’s letter was only received on 5 December 2001.
[83] Finally, the plaintiffs have given an undertaking as to damages. The court is satisfied that the plaintiffs are in a strong financial position to meet their undertaking in the event the defendant wins at the trial.
Passing off
[84] In the instant case, the plaintiffs are seeking to protect their intellectual property in their trade mark and also in their internet domain names. The latter is a new form of intellectual property which came about because of the advent of the internet.
[85] An action for passing off is a very old and familiar one. It is used to protect property by preventing damage to goodwill associated with the name or mark by preventing other people from fraudulently stating that it is their manufacture when it is not. In this way, it is a remedy to protect the right of a man to have the reputation of selling that which is his manufacture as his manufacture (see Lord Halsbury LC’s judgment in Magnolia Metal Co v Tandem Smelting Syndicate Ltd (1900) 17 RPC 477 at p 484).
[86] It is also a fundamental rule that no man has a right to pass off his goods for sale as the goods of a rival trader (see Leather Cloth Co Ltd v American Leather Cloth Co Ltd (1865) 11 HL Cas 523 at p 538, per Lord Kingsdown.
[87] It would seem that in passing off cases the right invaded is the property in the business or goodwill likely to be injured by the misrepresentation (see Spalding & Bros v AW Gamage Ltd (1915) 84 LJ Ch 449 (HL)).
[88] The general rule is that if a plaintiff applies for an injunction in respect of a violation of a common law right, and the existence of that right, or the fact of its violation is denied, he must established his right at law (see Spottiswoode v Clark (1846) 2 Ch 154). Having done that he is, except in special circumstances, entitled to an injunction to prevent a recurrence of that violation. In certain cases the court may not require the plaintiff to establish his right at law, for instance where his title is not denied (see Directors of Imperial Gas Light and Coke Co v Broadbent (1859) 7 HL Cas 600 at p 612; Fullwood v Fullwood (1878) 9 Ch D 176; Martin v Price [1894] 1 Ch 276 at 285, CA; Wood v Conway Coon [1914] 2 Ch 47 (CA); Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] I Ch 149 at p 181, [1953] I All ER 179 at p 197 (CA) and Potts v Leyy (1854) 2 Drew 272).
[89] The principles upon which actions for passing off were founded are stated in the proposition that nobody has any right to represent his goods a!§’ the goods of somebody else. (See Lord Parker’s judgment in AG Spalding Bros v AW Gama-ge Ltd (1915) 84LJ Ch 449 at 449. See also Singer Manufacturing Co v Loog (1880) 18 Ch D 395 and Frank Reddaway & Co Ltd v George Banham & Co Ltd [1896] AC 1999, [1895-9] All ER Rep 133).
[90] With regard to the basis of the cause of action of passing off and the property right which was damaged, Aldous LJ in delivering the first judgment in the case of British Telecommunications plc and another v One In A Million Ltd & Ors and other actions [1998] 4 All ER 476 to which Swinton Thomas and Stuart-Smith LJJ concurred cited the following excerpt from Lord Parker’s judgment in AG SRalding Bros v A W Gamage Ltd (1915) 84 LJ Ch 449 at 450:
The basis of a passing-off action being a false representation by the
defendant, it must be proved in each case as a fact that the false
representation was made. It may, of course, have been made in express
words, but cases of express misrepresentations of this sort are rare.
The more common case is where the representation is implied in the use
or imitation of a mark, trade mark, or get-up with which the goods of
another are associated in the minds of the public, or of a particular
class of the public. In such cases the point to be decided is whether,
having regard to all the circumstances of the case, the use by the
defendant in connection with the goods of the mark, name, or get-up in
question impliedly represents such goods to be the goods of the
plaintiff or the goods of the plaintiff of a particular class or
quality, or, as it is sometimes put, whether the defendant’s use of
such mark, name, or get-up is calculated to deceive. It would, however,
be impossible to enumerate or classify all the possible ways in which a
man may make the false representation relied on. There appears to be
considerable diversity of opinion as to the nature of the right, the
invasion of which is the subject of what are known as passing-off
actions. The more general opinion appears to be that the right is a
right of property. This view naturally demands an answer to the
question, Property in what? Some authorities say, property in the mark,
name, or getup improperly used by the defendant. Others say, property
in the business or goodwill likely to be injured by the
misrepresentation. Lord Herschell, in Reddaway v Banham & Co
[1896] AC 199, [1895-9] All ER Rep 133) expressly dissents from the
former view, and if the right invaded is a right of property at all,
there are, I think, strong reasons for preferring the latter view. In
the first place, cases of misrepresentation by the use of a mark, name,
or get-up infringed unless it be B’s name; and if he says falsely, ‘
These are B’s goods of a particular quality,’ where the goods are in
fact B’s goods, there is no name which is infringed at all.
[91] In British Telecommunications, the Court of Appeal in dismissing the defendants’ appeal held that the court had jurisdiction to grant injunctive relief in a passing off action where a defendant was equipped with or was intending to equip another with an instrument of fraud.
[92] The facts of the case were that the plaintiff, namely, British Telecommunications plc, Telecom Services Cellular Radio Ltd, Virgin Enterprises Ltd, J Sainsbury plc, Marks & Spencers plc and Ladbroke Group plc, respectively, in each of the five actions was a well-known company possessing registered trade marks, most of which incorporated the company’s name and the use of which was such that the plaintiffs owned substantial goodwill attaching to them. The defendants were dealers in internet domain names who registered names and sold them to potential users very much in the same way as company registration agents and it was accepted that in each case they had registered domain names comprising the name or trade mark of the plaintiff. The plaintiff sought injunctive relief, [*244] alleging passing off and infringement of their trade marks and applied for summary judgment. The judge granted the plaintiffs final injunctions quia timet holding that although mere registration of a deceptive company name or internet domain name was not passing off, it was sufficient for the purposes of granting the injunction that what was going on was calculated to infringe the plaintiffs rights in future as it was beyond dispute that the defendant’s activities were calculated to infringe the plaintiffs’ right in the future. The reason was because the only possible reason why anyone, who was not connected with one of the plaintiffs would wish to use a domain name incorporating their trade marks or names would be to pass himself off as part of a plaintiff s group or his products off as theirs.
[93] In respect of the domain name containing the name Marks & Spencer which was registered by the defendant, One In A Million Ltd, Aldous IJ had this to say at pp 497–498:
It is accepted that the name Marks & Spencer denotes Marks &
Spencer plc and nobody else. Thus anybody seeing or hearing the name
realizes that what is being referred to is the business of Marks &
Spencer plc. It follows that registration by the appellants of a domain
name including the name Marks & Spencer makes a false
representation that they are associated or connected with Marks &
Spencer plc. This-can be demonstrated by considering the reaction of a
person who taps into his computer the domain name marksandspencer.co.uk
and presses a button to execute a ‘whois’ search. He will be told that
the registrant is One In A Million Ltd. A substantial number of persons
will conclude that One In A Million Ltd. must be connected or
associated with Marks & Spencer plc. That amounts to a false
representation which constitutes passing off.
…The placing on a register of a distinctive name such as
marksandspencer makes a representation to persons who consult the
register that the registrant is connected or associated with the name
registered and thus the owner of the goodwill in the name. Such persons
would not know of One In A Million Ltd. and would believe that they
were connected or associated with the owner of the goodwill in the
domain name they had registered. Further, registration of the domain
name including the words Marks & Spencer is an erosion of the
exclusive goodwill in the name which damages or is likely to damage
Marks & Spencer plc.
…
I also believe that domain names comprising the name Marks &
Spencer are instruments of fraud. Any realistic use of them as domain
names would result in passing off and there was ample evidence to
justify the injunctive relief granted by the judge to prevent them
being used for a fraudulent purpose and to prevent them being
transferred to others.
…
…
…
I also believe that the names registered by the appellants were
instruments of fraud and that injunctive relief was appropriate upon
this basis as well. The trade names were well-known ‘household names’
denoting in ordinary usage the respective respondent. The appellants
registered them without any distinguishing word because of the goodwill
attaching to those names. It was the value of that goodwill, not the
fact that they could perhaps be used in some [*245] way by a
third party without deception, which caused them to register the names.
The motive of the appellants was to use that goodwill and threaten to
sell it to another who might use it for passing off to obtain money
from the respondents. The value of the names lay in the threat that
they would be used in a fraudulent way. The registrations were made
with the purpose of appropriating the respondents’ property, their
goodwill, and with an intention of threatening dishonest use by them or
another. The registrations were instruments of fraud and injunctive
relief was appropriate just as much as it was in those cases where
persons registered company names for a similar purpose.
[94] Similarly here, in the instant case, the defendant by registering the said domain names which contain the word ‘Petronas’ which has not only become a household name in Malaysia but is also well known internationally there is a serious issue to be tried in that the defendant is making a false representation to persons who consult the register that the registrant Araneum Consulting Services is connected or associated with the name registered and thus the owner of the goodwill in the name Petronas. Such persons would not know of the defendant and would believe that the defendant was connected or associated with the plaintiffs who are the owners of the goodwill in the said domain names. By registering the said domain names the defendant has eroded the exclusive goodwill in the name Petronas which damages the plaintiffs.
[95] In my view, the said domain names are instruments of fraud and any realistic use of them as domain names would result in passing off. This would cause irreparable injury and damage to the plaintiffs and by virtue of this the balance of convenience tilts in favour of the plaintiffs. Therefore, as the plaintiffs have provided an undertaking as to damages the interim injunction sought for ought to be granted.
[96] The plaintiffs have sufficiently demonstrated that since the said domain names contain the word Petronas the court can assume that the intention of the defendant in using the said domain names is to deceive the public by passing off himself as part of the Petronas group of companies or his business or products as those of the plaintiffs.
[97] In the circumstances of this case, the court is satisfied that the plaintiffs have shown that there is a threat of passing off and trademark infringement on the defendant’s part which is likely to cause confusion in the minds of the present and potential consumers of the plaintiffs’ products thereby resulting in irreparable injury and damage to the plaintiffs’ trade, business and goodwill.
[98] In the premises, the court granted the inter partes prohibitory injunctions sought for by the plaintiffs with costs in the cause.
ORDER:
Plaintiff’s application allowed.
LOAD-DATE: 05/21/2008
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MOHAMAD IZAHAM MOHAMED YATIM
The Mathematical Theory of Nothing
Anti Cyber Forensics
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