Section Code: G3

Student Identification Number: 01485958

Instructor’s name: Professor Quek Anderson Dorcas

Name of Assignment: 2 Open Legal Memorandum

Word Count: 2,496 words

(excluding cover-page, footnotes, and the academic integrity statement)

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To: Sue Moore
From: SSS
Date: 10 Jan 2017
Re: Memorandum for Mr Alan Nest
__________________________________________________________________________________
I. Introduction

1. Mr Alan Nest (“Nest”) is the creator of the “Chatter” app (“Chatter”) that is
overwhelmingly popular in Singapore. Nest seeks advice regarding the letter of
demand sent by Amazin LLP, representing X Corp(formerly known as Twitter). X
Corp (“X”) has accused Chatter of the tort of passing off with regard to the name
“Chatter”, and its icon of a bird taking flight.

II. Questions Presented

2. We will deal with the following issues in this memorandum:

a. Is Nest able to argue that there is no passing off because X has ceased to use
its previous blue bird logo and the name “Twitter”?
b. Does Prof Marketer’s expert report(“the expert report”) help Nest to establish
that there is no misrepresentation causing confusion amongst the Singapore
public?

III. Brief Answers

3. Yes, Nest will be able to argue that there is no passing off because of rebranding.
4. No, Prof Marketer’s report is only a helpful reference for the court to determine
that there is no misrepresentation causing confusion amongst the Singapore
public.

IV. Statement of Facts

5. Chatter is a messaging app like Telegram. The app allows users to use generative
AI to create personalised avatars of its users and send AI-generated content to
other users. The name “Chatter” responds to the description of the app as a ‘new
way of chatter’. Chatter’s icon of a bird in flight was generated using AI with the
prompt of a ‘modern and minimalist bird in flight’, along with “CHATTER” in

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 bold. Chatter launched on 9th of August 2023, and has reached nearly 3 million
users by the end of September. It has also been publicly stated that Chatter was
created through generative AI.
6. On the 2nd of October, Chatter received a letter of demand (“the letter”) from
Amazin LLP. The letter accuses Chatter of passing off on X’s former name of
‘Twitter’ and their former hummingbird icon. X also requests Chatter to cease the
use of their name and icon in the letter.

V. Discussion

7. Twitter would possess goodwill. Following CDL Hotels International Ltd v

Pontiac Marina Pte Ltd(“CDL Hotels”), goodwill must be present to claim in
passing off.1 To determine whether there was goodwill, Twitter must prove that
their services had acquired a reputation in Singapore as at the relevant date and
they have a business in Singapore to which their goodwill can attach: Law of
Intellectual Property at [17.1.5](“LIP”).2
8. Twitter likely acquired a reputation in Singapore as at the relevant date. The
relevant date that Twitter’s goodwill must exist in Singapore is the date of
commencement of Chatter’s conduct complained of.3 Hence, Chatter’s launch date
with the name, ‘Chatter’, would be the relevant date. Following Singsung Pte Ltd
v LG26 Electronics Pte Ltd (“Singsung”), reputation is an inquiry of the
purchasing public in Singapore being aware of the business as a whole as a
provider of service.4 The purchasing public refers to actual or potential consumers
provided by the claimant : Novelty Pte Ltd v Amanresorts Ltd(“Amanresorts”).5
In Amanresorts, the claimant’s services were targeted towards high-income
groups of Singapore and those who worked in the high-end travel industry in
Singapore.6 The relevant public was also aware of the respondent from their high
consumption of their services.7 Similarly, the purchasing public would be any
Singaporean who were existing users of Twitter’s services, or media professionals
and entities that would deal with Twitter in the course of business. Twitter(now X)
1
CDL Hotels International Ltd v Pontiac Marina Pte Ltd [1998] 1 SLR(R) 975 at [45]
2
Ng-Loy Wee Loon, Law of Intellectual Property of Singapore (3rd edition, 2021) at p[17.1.5]
3
CDL Hotels International Ltd v Pontiac Marina Pte Ltd [1998] 1 SLR(R) 975 at [34]
4
Singsung Pte Ltd v LG26 Electronics Pte Ltd [2014] 4 SLR 86
5
Novelty Pte Ltd v Amanresorts Ltd [2009] 3 SLR(R) 216 at [29]
6
Novelty Pte Ltd v Amanresorts Ltd [2009] 3 SLR(R) 216 at [42]
7
Novelty Pte Ltd v Amanresorts Ltd [2009] 3 SLR(R) 216 at [14]

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 has been available in Singapore since 2006. Even though Twitter rebranded to X
on 24th July 2023, before the relevant date, it had existed for a substantially long
period in Singapore’s markets and the purchasing public would likely be aware of
it as a source of messaging services. This is evident from Twitter having a high
social media market share of 25.13% before the rebranding. Thus, Twitter would
have reputation.
9. Twitter would have business in Singapore. Following Singsung, business requires
the claimant’s customers to be within jurisdiction when they purchased the
claimant’s services.8 In Singsung, the claimants were found to have business in
Singapore as they offered a product or service for sale in this jurisdiction and a
customer purchases or consumes the service here.9 Twitter would likely have
business in Singapore, as they offer their services in Singapore. Consumers such
as the purchasing public consume their services here, from their local social media
market share of 25.13% in September 2022.
10. X is likely to possess the goodwill it had as Twitter. A business may lose its
goodwill attached to a mark if it discontinues its use of the mark. A discontinued
mark may be seen as an abandonment of trade: Ingenhol v El Oriente Fabrica De
Tabacos(“Ingenhol”).10 In Ingenhol, there was no inference of abandonment of
trade by the party discontinuing the mark within three years. This was due to
ongoing litigation regarding the right to use the marks.11 Following VV
Technology Pte Ltd v Twitter, Inc (“VV Tech”), the courts held that Twitter would
still have the rights to its icon even though the final judgement came after Elon
Musk had bought over Twitter and had plans to rebrand it as the everything app,
X.12 Thus, X would still have Twitter’s goodwill even after the discontinued use of
the name and icon.
11. Since X has both reputation and business, it has goodwill. For the following
complaints would amount to a claim of passing off, misrepresentation must first
be established. The misrepresentation must then be proven to have caused
damages to X’s goodwill.
a. Complaint regarding Chatter’s name

8
Singsung Pte Ltd v LG26 Electronics Pte Ltd [2014] 4 SLR 86 at [62]
9
Singsung Pte Ltd v LG26 Electronics Pte Ltd [2014] 4 SLR 86 at [67]
10
Ingenhol v El Oriente Fabrica De Tabacos [1928] SSLR 212 at 220
11
Ingenhol v El Oriente Fabrica De Tabacos [1928] SSLR 212
12
VV Technology v Twitter, Inc [2022] SGHC 293 at [9]

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 12. The claim in passing off would not be made out for Chatter’s name, as damages to
X’s goodwill are not present. Misrepresentation only arises when there has been a
misrepresentation that confuses the relevant public: CDL Hotels at [71].13 X
alleges there to be misrepresentation to source, as Chatter’s name has falsely
represented that Twitter(now X) created it. Misrepresentation is only actionable
when it gives rise to confusion: Amanresorts at [77].14
13. The name ‘Twitter’ would likely be distinctive. Following Lifestyle 1.99 v $1.99 Pte
Ltd (trading as$1.99 Shop)(“Lifestyle 1.99”) , a mark that is ‘fancy’ with no
obvious relevance to the character or quality of the service would be distinctive. 15
In Jumbo Seafood Pte Ltd v Hong Kong Jumbo Seafood Restaurant Pte
Ltd(‘Jumbo Seafood’), it was held that even though ‘Jumbo’ meant something
large, it was not synonymous to that idea. Thus, ‘Jumbo’ would not be used to
describe the plaintiff’s large restaurant, making it fanciful. 16 Similarly, even
though “Twitter” describes the short messages that can be rapidly exchanged on
the app, “Twitter” is not synonymous to the short messaging service and would
not be used to describe the service. Thus, the name “Twitter” is fanciful and
distinctive.
14. Confusion would likely be made out considering the degree of similarity and
distinctiveness of the marks: LIP at [18.2.37].17 The name “Twitter” would likely
have a high degree of distinctiveness given Twitter’s strong reputation from its
long presence in Singapore’s markets, which would lead to a higher likelihood of
confusion: The Singapore Professional Golfers’ Association v Chen Eng
Waye(“SPGA”) at [55].18
15. There would be a high degree of similarity between ‘Chatter’ and ‘Twitter’.
Similarity is determined by visual, aural or conceptual similarity of the marks:
LIP at [18.2.39].19 Following De Cordova v Vick Chemical Co, visual similarity is
determined through general impressions or by some significant detail. 20 The
names “Chatter” and “Twitter” are visually similar as they share the significant
details of morphology and the number of letters. The names are mostly aurally
13
CDL Hotels International Ltd v Pontiac Marina Pte Ltd [1998] 1 SLR(R) 975 at [71]
14
Novelty Pte Ltd v Amanresorts Ltd [2009] 3 SLR(R) 216 at [77]
15
Lifestyle 1.99 v $1.99 Pte Ltd (Trading as $1.99 Shop) [2000] 1 SLR(R) 687 at [27]
16
Jumbo Seafood Pte Ltd v Hong Kong Jumbo Seafood Restaurant Pte Ltd [1997] 3 SLR(R) 878 at [26]
17
Ng-Loy Wee Loon, Law of Intellectual Property of Singapore (3rd edition, 2021) at [18.2.37]
18
The Singapore Professional Golfers’ Association v Chen Eng Waye [2013] 2 SLR 495 at [55]
19
Ng-Loy Wee Loon, Law of Intellectual Property of Singapore (3rd edition, 2021) at [18.2.39]
20
De Cordova v Vick Chemical Co [1951] WN 953

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 similar, sharing the “-tter” suffix. Finally, both names describe the idea of idle
chatter, making them conceptually similar. Given that similarity and
distinctiveness are present, Chatter’s name is likely to fulfil the element of
misrepresentation.
16. There are no damages to goodwill. Following Asia Pacific Publishing Pte Ltd v
Pioneers & Leaders (Publishers) Pte Ltd, X needs to show that they suffered
damages to their goodwill in the form of blurring. 21 Blurring occurs where the
claimant’s get-up or mark, becomes indicative of the defendant’s goods alongside
those of the claimants: Amanresorts at [97].22 Following CDL Hotels, damages
from the blurring of goodwill must be proven to be real. 23 In Jumbo Seafood, the
market survey and customer interviews found that a substantial number of
customers had made wrong bookings or wrongly went to the defendant’s
restaurant when they intended to go to the claimant’s restaurant because the
confusingly similar names.24 The real likelihood of blurring arose due to the same
‘Jumbo’ mark used.25
17. However, there may not be a real likelihood of blurring of X’s and Chatter’s
services due to the rebranding exercise. X is now presented as ‘X’ on the app
stores where customers would download the apps from. Since there no longer was
“Twitter” to be indicative of both X’s and Chatter’s service by the relevant date,
therefore no blurring would arise from the visually similar “Chatter” name. Thus,
there will be no damages to goodwill.
18. Since there are no damages present, the claim in passing off cannot be made for
Chatter’s name.

b. Complaint regarding Chatter’s icon

19. The claim in passing off would not succeed for Chatter’s icon as well. X alleges
Chatter to have misrepresented as to source with their bird icon. Though
misrepresentation as to source may be made out, damages to goodwill are not
present.

21
Asia Pacific Publishing Pte Ltd v Pioneers & Leaders (Publishers) Pte Ltd at [139]
22
Novelty Pte Ltd v Amanresorts Ltd [2009] 3 SLR(R) 216 at [97]
23
CDL Hotels International Ltd v Pontiac Marina Pte Ltd [1998] 1 SLR(R) 975 at [82]-[83]
24
Jumbo Seafood Pte Ltd v Hong Kong Jumbo Seafood Restaurant Pte Ltd [1997] 3 SLR(R) 878 at [33] & [38]
25
Jumbo Seafood Pte Ltd v Hong Kong Jumbo Seafood Restaurant Pte Ltd [1997] 3 SLR(R) 878 at [23]

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 20. Twitter’s bird icon would likely be distinctive. As seen in [13], a fanciful mark
with no obvious relevance to the product would be distinctive. Following VV
Tech, it would be too far-fetched to claim that Twitter’s bird logo would allude to
the quality of its services because it was not immediately relevant to the short
messaging services provided.26 Furthermore, Twitter’s icon it provides for a
fanciful and inventive depiction of the bird, which would make the distinct to the
purchasing public.27 Given that the present case also refers to Twitter’s bird icon,
the distinctiveness of Twitter’s bird icon is made out.
21. It is likely that confusion will be made out. As seen in [14], confusion is
determined by degree of distinctiveness and similarity. Twitter’s bird icon would
be highly distinctive given Twitter’s strong reputation from its long presence in
Singapore’s markets, which would lead to a higher likelihood of confusion: SPGA
at [55].28
22. In VV Tech, it was followed that the similarity between the marks should not be
determined by a ‘detailed spot-the-difference’ comparison, as these differences in
the mark would not feature in the average consumer’s overall impression of the
marks.29 Following VV Tech, the court had rejected the applicant’s argument that
their hummingbird icon would not be confused with Twitter’s bird icon due to
subtle differences in its general shape. The court established that the applicant’s
icon was visually similar to Twitter’s bird icon in terms of the general shape of a
bird, similar movement of a bird in flight, and a lack of features. Customers, on
average, are likely to perceive visual similarity between the icons and overlook
differences.30
23. Similarly, Chatter’s bird icon would share the visual similarities of a general
shape of a bird, similar movement of a bird in flight and a lack of features with
Twitter’s bird icon. Even though Chatter’s icon includes “CHATTER” in bold, the
main focus of the icon would likely be the larger bird icon. This may also result in
the letters being overlooked. Considering the imperfect recollection and tendency
to overlook differences, an average customer would likely find visual similarity

26
VV Technology v Twitter, Inc [2022] SGHC 293 at [126]
27
VV Technology v Twitter, Inc [2022] SGHC 293 at [128]
28
The Singapore Professional Golfers’ Association v Chen Eng Waye [2013] 2 SLR 495 at [55]
29
VV Technology v Twitter, Inc [2022] SGHC 293 at [155]
30
VV Technology v Twitter, Inc [2022] SGHC 293 at[187]

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 between Chatter’s icon and Twitter’s icon. Thus, similarity is made out and
misrepresentation is present.
24. Even though the findings of the expert report state that 80% of respondents
identified Chatter’s icon to belong to an entity that is not X, the expert report is
not a final authority on misrepresentation. Following CDL Hotels, the admission
of evidence from the expert report will be given weight depending on
circumstances of the case.31 However, proving that a substantial number amongst
the purchasing public would be confused does not mean a high number of
consumers: CDL at [73].32 Finding of confusion is ultimately done by the court.
While the expert report is valuable in demonstrating that there is a substantial
number of respondents that may not experience confusion, it does not necessarily
imply that confusion is absent amongst the entire purchasing public. The court’s
findings of visual similarity would take precedence over the expert report.
25. There will be no damages to goodwill. From [16], damages to goodwill are made
out if there is a real likelihood that the mark would become indicative of both
parties’ goods and services. Following Fenty and others v Arcadia Group Brands
Pte Ltd(Trading as TopShop) and others, the defendants were held to have
damaged the goodwill of the claimant by using an unauthorised image of her on
their shirts. The image was taken during the claimant’s official promotional shoot.
The false material connection created misled the purchasing public into buying the
shirts, believing that the shirt was endorsed by the claimant. The image on the
shirts became indicative of both her existing merchandise and the defendants’
goods.33
26. In juxtaposition, blurring will not occur despite Chatter’s similar icon. The
discontinuation of Twitter’s bird icon would mean that the bird icon is no longer
an existing badge of origin for Twitter’s services. Without a similar bird icon on
the market, the purchasing public would less likely find a connection between
Chatter’s icon and Twitter’s bird icon. The purchasing public would be less likely
to be misled into believing that Chatter has been endorsed by Twitter with the
similar icons and wrongly purchasing Chatter. Thus, there would likely be no

31
CDL Hotels International Ltd v Pontiac Marina Pte Ltd [1998] 1 SLR(R) 975 at [75] and [79]
32

33
Fenty and others v Arcadia Group Brands Pte Ltd(Trading as TopShop) and others [2015] 1 WLR 3291 at
[2], [34] and [47]

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 material diversion of sales from X to Chatter without any competing marks in the
market. Hence, damages to goodwill would not be made out for Chatter’s icon.
27. Since there are no damages to goodwill, the claim of passing off cannot be made
out for Chatter’s icon.

VI. Conclusion

28. Nest would be able to prove that there is no passing off because X Corp has
ceased to use its previous bird icon and the name ‘Twitter’. The report would be
helpful, but not definitive in determining confusion as per precedent. The
Singapore courts would likely adopt the approach set out in VV Tech, where X
would be unable to claim against Nest and Chatter.
29. It is recommended that Nest obtain further information to support his arguments.
Specifically, such information would be useful:
a. Whether Nest intended to deceive the purchasing public by using an AI trained
on Twitter’s name and icon information.
b. Whether there are media entities and more consumers that have been confused
between Chatter and Twitter.
30. It is recommended that Nest either modify Chatter’s name and icon or discontinue
its use of them even though there is no valid claim of passing off. This is due to
the element of misrepresentation present in both the name and icon.

I declare that I have abided by SMU’s Code of Academic Integrity