LLB 41203 - OPINION WRITING FINAL TEST

A’ISYAH BINTI MD NOOR (046443)

QUESTION 1
To ensure that the subsequent legal advice addresses the concerns of Kuntum
Production Sdn. Bhd. (hereinafter shall be recognised as “KPSB”) in all respected
ways, we require further information and/or facts on the following matters:

1. Was there any form of communication between KPSB and LB Global

Enterprise (hereinafter shall be recognised as “LBGE”) prior to the circulation
of the Sponsorship Package?

2. Has KPSB and LBGE worked together before for any events and if yes, had
the names, images and mascots of ‘Ros & Rosie’ participated in the said
event?

3. How did LBGE have access to the images of ‘Ros & Rosie’?

4. Has KPSB taken any steps to enforce the trademark either by applying a
Trade Description Order (“TDO”) in Court or lodging a complaint to the
Ministry of Domestic Trade, Cooperatives and Consumerism (“MDTCC”)?

5. Has KPSB renewed the trademarks for the animated characters of ‘Ros &
Rosie’ for an extended period since it had first been registered?

6. Has LBGE advertised or exhibited Festival Seloka Warna to the public? If yes,
in what way were they made and had the images or names of ‘Ros & Rosie’
been used?

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LLB 41203 - OPINION WRITING FINAL TEST
A’ISYAH BINTI MD NOOR (046443)

QUESTION 2
The relevant facts from the scenario given are as follows:

1. The business carried out by KPSB covers the developing and producing of
the three dimensional children animated film as well as television series
known as ‘Ros, Rosie dan Rakan-rakan’ (“the Animated Series”);

2. In 2011, KPSB had duly registered the copyright for the Animated Series as
well as trademarks for the characters especially ‘Ros’ and ‘Rosie’;

3. KPSB would license the right to use the images of ‘Ros’ and ‘Rosie’ for other
companies to put on their merchandising products which includes chocolates,
cereals, books, milk and others whilst also providing another service in which
mascots of ‘Ros’ and ‘Rosie would make appearance at the requested event;

4. An event known as ‘Festival Seloka Warna’ (“the Festival”) was to be held by

LBGE between 26.10.2019 until 12.12.2019;

5. For the Festival, a sponsorship package (“the Sponsorship Package”)

divided according to the categories of Titanium Package, Platinum Package
and a Gold Package had been distributed to several companies including
KPSB containing offers for the companies to provide a certain amount
prescribed under each package;

6. However, it was discovered that the LBGE had tentatively included ‘Ros &
Rosie’ alongside other animated characters as their main attractions by
specifically naming these characters and including their images on the
Tentative Agenda that came with the Sponsorship Package;

7. This matter has taken KPSB aback as no agreement had been made on any
previous events with LBGE to allow the use of the name, images and mascots
of ‘Ros & Rosie’ to take part in the Festival; and

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LLB 41203 - OPINION WRITING FINAL TEST
A’ISYAH BINTI MD NOOR (046443)

8. On 26.10.2019, the date that the Festival was supposed to begin, LBGE
announced that the Festival would be postponed to March 2020 and later
before the Movement Control Order had been implemented, the Festival had
been cancelled indefinitely.

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LLB 41203 - OPINION WRITING FINAL TEST
A’ISYAH BINTI MD NOOR (046443)

QUESTION 3
The relevant issues that needs to be determined in this case are as follows:

1. Whether an infringement of copyright as per Section 36 of the Copyright Act

1987 (“the CA 1987”) had occurred;

2. Whether the registration of the trademark of ‘Ros & Rosie’ is still valid and
thus whether an infringement of trademark under either of the limbs of Section
38(1) of the Trade Marks Act 1976 (“the TMA 1976”) had occurred;

3. Whether the current situation fulfills the elements to take action against LBGE
under the common law tort of passing off. The elements to be proved are as
follows:
a. KPSB has goodwill or reputation attached to the goods or services by
association with the trademark of ‘Ros & Rosie’;

b. LBGE has misrepresented to the public which leads or is likely to lead

the public to believe that LBGE’s goods or services are the goods or
services of KPSB; and

c. KPSB must prove that they have suffered, or in a quia timet action, are
likely to suffer damage by reason of the LBGE’s misrepresentation.

4. What are the foreseeable defences that LBGE may raise and how can they be
rebutted; and

5. Whether KPSB can be compensated for any damages, loss or liability arising
from the infringement of LBGE.