Malaysia: A Pet Story

November 27th, 2012

 

In the case of Network Pet Product (M) Sdn. Bhd. v Royal Canin SAS and Anor, the High Court of Malaya at Kuala Lumpur dismissed Network Pet Product’s appeal claiming injunction against Royal Canin SAS.

Network Pet Product (M) Sdn. Bhd. (hereinafter referred to as ‘the Plaintiff’) is a company incorporated in Malaysia carrying on the business of trading and manufacturing of pet products. Royal Canin SAS (hereinafter referred to as ‘the Defendant’) is a company incorporated in France, also carrying on the business of trading and manufacturing of pet products.

The Plaintiff, around the year 1996, entered in to an oral agreement with the Defendant and started supplying pet food products (‘the Products’) bearing the ‘Royal Canin’ trademark. In 2003 the Defendant, by means of a written agreement, appointed the Plaintiff as its sole distributor of the Products. After the expiry of the agreement in the year 2004, the Plaintiff and the Defendant continued with the business relationship without executing the renewal agreement. In 2011, the Defendant informed the Plaintiff that it was not going to renew the agreement for another term and gave the Plaintiff 9-month notice. The Defendant also set up a representative office in Malaysia in 2011.

The Plaintiff contented that it had been the sole distributor of the Products in Malaysia and Brunei since 1996. The Plaintiff further contented that by setting up a representative office, the Defendant intended to enter the Malaysian market to be the distributor of the Products.

Upon hearing the submissions of the Plaintiff, the ex-parte application was allowed and the High Court granted an interlocutory injunction against the Defendant. Subsequently, the ex-parte injunction was set aside by means of a setting aside application.

When the inter partes application was heard, the High Court decided that as the balance of convenience lie in favor of the Defendant, an injunction must not be granted to restrain the Defendant from distributing its own products bearing the Defendant’s trademark name. The Court further stated that the Plaintiff had failed to show that irreplaceable harm or damage would be caused to them and that such harm or damage would place them in an irretrievable position incapable of remedy by way of damages. Therefore, the High Court dismissed the Plaintiff’s application of an injunction.