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Regal Hotels (Holdings) Ltd v Sun King Cheung Development Co Ltd

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date03 October 1986
Subject MatterCivil Action
Judgement NumberHCA5369/1986
CourtHigh Court (Hong Kong)
HCA005369/1986 REGAL HOTELS (HOLDINGS) LTD v. SUN KING CHEUNG DEVELOPMENT CO LTD

HCA005369/1986

1986, No. 5369

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

____________

BETWEEN

REGAL HOTELS (HOLDINGS) LIMITED Plaintiff
AND
SUN KING CHEUNG DEVELOPMENT COMPANY LIMITED Defendant

____________

Coram: The Honourable Mr. Justice Nazareth in Chambers

Date of Hearing: 1 October 1986

Date of Delivery of Judgment: 3 October 1986

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JUDGMENT

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1. This is a summons taken out by the Plaintiff for an order that the Defendant be restrained from commencing or carrying on the business of a restaurant under the styles or names of "Regal Palace Seafood Restaurant" and/or (which may be translated as Lai Ho Sea Food Restaurant) in particular at the 3rd Floor of Elizabeth House, Gloucester Road, Wanchai, Hong Kong or otherwise passing off or attempting to pass off the restaurant business of the Defendant as the business of the Plaintiff by use of any trading style containing the words "Regal Seafood Restaurant" and/or (Lai Ho) and/or the device of two fishes which constitutes the logo of the Plaintiff's restaurant, or any colourable imitation thereof.

2. The Plaintiff, as its name suggests is a holding company which through a subsidiary operates three hotels in Hong Kong. These are, first the Hotel Regal Meridian Hong Kong situated in east Tsim Sha Tsui. Its Chinese name may be translated as Fu Ho Hotel. Second the Hotel Regal Meridien Hong Kong situated at the Hong Kong Airport. Its Chinese name is which may be translated as the Airport Fu Ho Hotel. And third the Hotel Riverside Plaza in Shatin the Chinese name of which is and may be translated as "Lai Ho Hotel".

3. Each of the three hotels operates within its own premises a Chinese restaurant which is known by the English name of "Regal Seafood Restaurant" and the Chinese name which may be translated as "Ho Yuen Shark Fin Seafood Restaurant". The restaurants have the same logo which I shall describe later. The restaurants all specialize in Chinese seafood although they also serve other food. They have been very successful, profitable and indeed fully booked every evening since each was opened. They have been advertised on a substantial scale and have also been the subject of substantial publicity. All this applies equally to the restaurant that was most recently opened i.e. the Regal Seafood Restaurant in the Riverside Plaza Hotel which opened in late May this year.

4. Some time in late July this year the Plaintiff discovered that certain shop premises on the 3rd Floor of Elizabeth House, Wanchai, were being decorated in the names "Regal Palace Seafood Restaurant" and in Chinese which may be translated as Lai Ho Seafood Restaurant. The Plaintiff considered these names were similar to both the English names of the three restaurants and the Chinese name of the Riverside Hotel so it instructed solicitors to write to the proprietors of the proposed restaurant, pointing that out and asking them to refrain from using the proposed names and to remove all signs posters and other items bearing the words or characters in question. The solicitors wrote on 1st August 1986. On the 14th August 1986 they received a reply from the Defendant’s Solicitors stating that they had been advised by counsel that the Defendant was entitled to use the names it proposed. They also asked for the English and Chinese names of the Plaintiff which it was alleged were being passed off. There was a further exchange ending with a letter from the Defendant’s Solicitors on the 4th September 1986 saying that they were instructed to accept service on behalf of the Defendant. The Plaintiff then issued its writ on the 20th September and on the same day took out the present summons.

5. The similarities between the two logos may be said to be their roughly similar oval shape with one fish at each horizontal end, not it is said, just any fish, but carp, the Emperor's fish; also the writing in both appears in the centre between the fish. I think there is some obvious similarity. On the other hand, there are substantial differences in that the fish in the Plaintiff's logo face upwards while those in the Defendant's face downwards; also below the fish in the Defendant's logo there is a bed of waves or fishscales, which does not appear in the Plaintiff's logo. The only writing in the Defendant’s logo consists of two Chinese characters which may be romanized as Lai Ho and translated loosely as "beautiful rich" or "beautiful luxury". The Plaintiff's logo, on the other hand, has much more writing in it consisting of first no less than 8 Chinese characters i.e. which may be romanized as Ho Yuen Yu Chi Hoi Sin Chow Kar and translated roughly as Luxury Garden Shark Fin Seafood Restaurant; and secondly of “Regal Seafood Restaurant” in English.

6. To proceed, Mr. Rogers for the Plaintiff referred me to the well-known House of Lords decision in American Cyanamid (1975) AC 3 submitting in accordance with the principles it established that, first the Plaintiff had an arguable case; second that it would suffer irreparable damages if interlocutory relief were not granted; third that the Plaintiff would not be adequately compensated if interim relief were not provided; and fourth that the Defendant would be adequately compensated under the Plaintiff’s undertaking. He adds that the Plaintiff is not seeking to stop the Defendant’s business but merely to restrain the use of the misleading names and logo. Upon that basis, he submits the balance of convenience clearly lies in favour of the Defendant being restrained. It is not disputed that for that purpose the time to be taken is that of the issue of the writ....

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