Dalam kemas kini ini
Summary and Facts
Golden Damascus Diversifies Sdn Bhd v Aroi Thai Kitchen (Puncak Alam) Sdn Bhd [2026] 10 MLJ 97 involved a restaurant operating as “Damascus” since 2018 with a substantial social media following. A competitor began renovating a new outlet as “Damascus Delight”, with evidence its owners had instructed their contractor – and visited the plaintiff’s premises – to replicate the plaintiff’s interior design.
Legal Issues
-
Whether the plaintiff, without a registered trademark, established a serious issue to be tried in passing off.
-
Whether damages would be adequate, and where the balance of convenience lay given the defendant had not yet opened.
Court’s Findings
-
Passing off does not depend on trademark registration – seven years of continuous use, a strong social media following and evidence of actual customer confusion raised a serious issue on goodwill, misrepresentation and damage.
-
That “Damascus” is also a generic geographical name used by others did not defeat the claim, since the case rested on the combination of the name with the plaintiff’s trade dress, not the word alone.
-
-
Damage to goodwill is inherently difficult to quantify, so damages were not an adequate remedy if the injunction were refused and the plaintiff later succeeded at trial.
-
The balance of convenience favoured the injunction since the defendant’s outlet had not yet opened and remained free to trade under another name.
Practical Implications
This case confirms that a business can protect an unregistered brand identity through passing off where it can show real goodwill and a deliberate attempt by a competitor to copy its concept.
-
Evidence of a competitor’s deliberate visit to “study” a business’s premises, or written instructions to replicate its design, can be powerful evidence of misrepresentation.
-
Registering a trademark remains best practice, but is not a precondition to obtaining interim relief against a copycat competitor.