Case Review Law of Tort

TRESPASS TO LAND BUKIT LENANG DEVELOPMENT SDN BHD v. TELEKOM MALAYSIA BHD & ORS [2012] 1 CLJ FACTS The plaintiff purchased a land from Oakfield Enterprises Sdn Bhd through a sale and purchase agreement dated 15 May 1996. The plaintiff was aware at that time of the presence of squatters on the land. Following the said purchase, the plaintiff commenced eviction proceedings against the squatters and succeeded in obtaining judgment where the court ordered that the squatters surrender vacant possession of the subject land to plaintiff.
The plaintiff’s solicitors demanded that second defendant cease supply of electricity and remove all structures in connection with the supply by letter dated 28 April 2004. Plaintiff brings a suit due to second defendant’s refusal to comply with the demand. The defence counsel, however, argued that second defendant could not be held liable for trespass in view of its statutory obligation under the Electricity Supply Act 1990 (ESA), and the plaintiff had failed to distinguish between the lots owned by the plaintiff and the rest of the land.
ISSUES 1. Whether second defendant’s failure to comply with plaintiff’s demand to cease supply of electricity and remove structures in plaintiff’s land can be amounted to trespass to land? 2. Whether second defendant liable for trespass to a certain extent? JUDGMENT 1. The High Court had come to a conclusion that the second defendant liable for trespass to the extent of supplying electricity to legal occupants in plaintiff’s land.

The illegal occupants did not have the authority to allow TNB as licensee to place any structures on the land of its cables or wires to run over the plaintiff’s lots which would be trespass. A valid and subsisting High Court order declaring the occupants’ status as squatters or trespassers had been served on second defendant and they had to comply with the plaintiff’s demand to cease supply of electricity premised on a valid and enforceable order.
Second defendant as a public utility provider had failed to discontinue the trespass when due notice of illegal occupation had been given. 2. Plaintiff had vide its solicitors’ letter of 28 April 2004 put second defendant to notice that the court had determined that the occupiers on the plaintiff’s land who had been supplied electricity were trespassers and the lot numbers owned by the plaintiff were supplied. The defence raised there was no evidence of any response from second to the effect that the plaintiff’s lots could not be identified from the entire piece of land.
The occupants being squatters were strangers to the plaintiff whereas second defendant was in possession of records showing their identities and location of the households that had electricity supply. Hence, the issue of non-identification or demarcation of the plaintiff’s lots did not arise in this case. 3. So, second defendant were held liable for trespassing plaintiff’s land by placing cables and wires to run over plaintiff’s lots and also by supplying electricity to illegal occupants in plaintiff’s land.
COMMENTARY I agree on behalf of High Court’s decision where second defendant (Telekom Malaysia Bhd) should be liable for trespassing into plaintiff’s (Bukit Lenang Development Sdn Bhd). This is because they had been informed earlier by plaintiff’s solicitor to cease supply of electricity and remove all structures in connection with the supply by letter dated 28 April 2004 but they still failed to do so. They also know that the people they are supplying the electricity are illegal occupants of plaintiff’s land.
From a legal view, even by placing something on other’s land and continue the act would be considered as trespass to land. So, second defendant had trespass plaintiff’s land intentionally as they were informed earlier to comply with it. Furthermore, second defendant’s action of supplying electricity to the illegal occupants is regarded as immoral by abetting and conspires with them to occupy plaintiff’s land illegally. Therefore, in moral view, they should avoid from doing so. In conclusion, High Court’s decision that second defendant liable for trespassing plaintiff’s land is reasonable.
PASSING OFF DANONE BISCUITS MANUFACTURING (M) SDN BHD V. HWA TAI INDUSTRIES BHD [2010] 8 MLJ 500 FACTS In early April 2001, the Plaintiff discovered that the defendant, Hwa Tai Industries Bhd, had been manufacturing and selling chocolate chip cookies bearing the trademark “Chipsplus”. The plaintiff subsequently requested that the defendant cease the manufacture and sale of cookies bearing this trademark, on the basis that the trademark, as well as get-up and packaging of the product, were confusingly similar to their registered “ChipsMore” mark.
However, the defendant refused to do so, and as such, the plaintiff sued the defendant for trademark infringement and passing off. The plaintiff argued that the defendant’s “Chipsplus” trademark infringed upon its registered trademark, while the similar get-up and packaging of the cookies amounted to the defendant passing off its “Chipsplus” cookies as the Plaintiff’s “ChipsMore” cookies, and this affected their business, reputation and goodwill in Malaysia.
The defendant however denied the plaintiff’s claims, and further contended that the “ChipsMore” registration had lapsed, and was therefore invalid. ISSUES 1. Whether Hwa Tai Industries Bhd is liable for passing off defendant’s chocolate chip cookies “ChipsMore” trademark? JUDGMENT 1. It was held that the defendant’s mark “CHIPSPLUS” used on chocolate chip cookies were to bring result in confusion to the public as the mark “CHIPSPLUS” and the Plaintiff’s registered mark for “CHIPSMORE” for the same product are conceptually similar.
The court found that the defendant was liable for infringement because the plaintiff had a registration certificate and renewal certificate evidencing a valid trademark, and the Plaintiff had not given the defendant permission to use their trademark. Furthermore, as “Chipsplus” was similar to “ChipsMore”, there was a possibility of confusion or deception amongst the public. Court found in the plaintiff’s favour and allowed the plaintiff’s claim for infringement and passing off. COMMENTARY
I am against the decision made by the court as the mark ‘CHIPSPLUS’ used by defendant was like merely to use the word ‘CHIPSPLUS’ to promote their new cookies products with extra and additional chips and it is not necessary to prove that the word ‘CHIPSPLUS’ can be used by plaintiff only. Other manufacturers can have freedom to use any appropriate word as label for their products as long as it does not totally imitate other manufacturer’s product label. Plaintiff maybe has the idea to promote their chips cookies by using the ‘CHIPSPLUS’ word too and not have the intention to pass off defendant’s trademark.

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