Case Details
- Citation: [2025] SGHCR 15
- Court: High Court (General Division)
- Originating Claim No: 370 of 2022
- Decision Date: 21 May 2025
- Judges: Assistant Registrar Gerome Goh Teng Jun
- Parties: Fanco Fan Marketing Pte Ltd (Claimant) v Triple D Trading Pte Ltd (Defendant)
- Procedural History: Passing off claim succeeded by summary judgment on 29 September 2023; earlier trade mark invalidation obtained in HC/S 464/2021 with expungement ordered on 16 September 2022
- Key Prior Decision: Triple D Trading Pte Ltd v Fanco Fan Marketing Pte Ltd [2023] 3 SLR 1417 (“Invalidation Judgment”)
- Earlier Interim/Procedural Orders: Summary judgment in HC/SUM 4552/2022; injunction and inquiry/account of profits/damages ordered; disclosure order in HC/SUM 960/2024
- Core Legal Areas: Intellectual Property; Trade marks and trade names; Passing off; Remedies; Account of profits
- Statutes Referenced: Trade Marks Act (Cap 322, 2005 Rev Ed), in particular s 7(6)
- Judgment Length: 48 pages; 14,335 words
Summary
Fanco Fan Marketing Pte Ltd v Triple D Trading Pte Ltd concerned a claim in passing off relating to ceiling fans marketed under the sign “COFAN” and the model name “HALI”. The claimant had previously succeeded in invalidating the defendant’s “COFAN” trade mark registration on the ground of bad faith, and had also obtained summary judgment in the present proceedings for passing off. The remaining issue before the Assistant Registrar was the quantification of relief in the form of an account of profits (or, alternatively, damages), following the court’s earlier finding of liability.
The High Court’s decision focuses on how to calculate an account of profits where documentary evidence is incomplete. The court accepted that the purpose of an account of profits is to disgorge benefits unjustly retained by the tortfeasor, not to punish. It emphasised that, in practice, claimants often face evidential difficulties because revenue and costs are within the defendant’s knowledge. Accordingly, the court must make a “judicial estimation of the available indications” and do the best it can on the whole of the material before it.
On the evidence available, the court found the defendant liable to pay the claimant $316,590.18 as profits made in respect of the acts of passing off. The decision is particularly instructive on (i) the reliability of a defendant’s unaudited sales summary, (ii) the treatment of missing source documents, and (iii) the approach to estimating revenue and allowable costs and expenses in an account of profits inquiry.
What Were the Facts of This Case?
The claimant, Fanco Fan Marketing Pte Ltd, is a Singapore company incorporated on 17 May 2013, but its business history dates back to around 2002 through a partnership known as Fanco Fan Marketing. The claimant’s founders and only shareholders are Mr Quek Lip Ngee and Mr Lim Boon Lee. Mr Quek managed Singapore operations, while Mr Lim managed Malaysia operations. The claimant owns the “FANCO” mark in Class 11.
The defendant, Triple D Trading Pte Ltd, was incorporated on 1 June 2017. Its sole director and shareholder is Mr Phua Kian Chey Colin. Notably, Mr Phua had previously been an employee of the claimant from 2009 until the claimant’s incorporation, continuing as a sales and marketing manager until December 2016. The factual narrative therefore includes an element of continuity of personnel and knowledge, which became relevant to the earlier bad faith invalidation of the defendant’s trade mark.
In August 2019, the claimant launched a new line of fans bearing the mark “CO-FAN”. The first model was “E-Lite”, and the second model launched in November 2019 was “HELI”. The defendant registered a “COFAN” trade mark (Trade Mark No. 40201904164S) in classes 9 and 11 on 27 February 2019. The defendant then launched its own “COFAN” brand of ceiling fans bearing the model name “HALI” in April or May 2021, alongside other fans sold under the “BESTAR” brand.
Before the account of profits inquiry, the defendant’s “COFAN” trade mark registration was invalidated. In HC/S 464/2021, Gill J held that the defendant had registered the mark in bad faith under s 7(6) of the Trade Marks Act and ordered expungement on 16 September 2022 (the “Invalidation Judgment”). In the present suit (Originating Claim No. 370 of 2022), the claimant brought a passing off claim based on the defendant’s advertising, marketing, distribution, offering for sale, and selling of ceiling fans under “COFAN” and “HALI”. The claimant sought an injunction and either damages or an account of profits. The claimant obtained summary judgment on 29 September 2023 in HC/SUM 4552/2022, with an injunction and an inquiry reserved for damages/account of profits.
What Were the Key Legal Issues?
The principal legal issue was the quantification of relief following a finding of passing off liability: specifically, whether and to what extent the claimant should receive an account of profits, and how profits should be calculated given the evidential gaps. While the court had already determined liability, the account of profits inquiry required a careful assessment of the defendant’s revenue generated from the infringing/passing off conduct and the costs and expenses that could be deducted to arrive at net profits.
A second issue concerned the reliability of the defendant’s disclosure. The defendant had provided an unaudited “Summary Breakdown” of sales of “COFAN” fans in Singapore from 1 August 2021 to 31 October 2022. The claimant challenged its reliability as unaudited, inaccurate, and unsupported by source documents. The court therefore had to decide how much weight to place on the Summary Breakdown and how to proceed when source documents were allegedly misplaced and lost during office shifting.
Finally, the court had to apply the correct legal principles governing accounts of profits in passing off. This included the conceptual purpose of disgorgement (unjust enrichment) rather than punishment, and the evidential approach to estimating profits where precise figures are not available.
How Did the Court Analyse the Issues?
The court began by restating the purpose and nature of an account of profits. It relied on the principle that an account of profits aims to disgorge benefits which the tortfeasor ought not to retain, preventing unjust enrichment rather than punishing the wrongdoer. The court cited Dart Industries Inc v Décor Corporation Pty Ltd and another for the proposition that the remedy is not punitive, and it also cited Main-Line Corporate Holdings Ltd v United Overseas Bank Ltd and another for the focus on profits actually made (ie, all financial gains) by the tortfeasor.
However, the court acknowledged the practical difficulty inherent in account of profits proceedings: claimants often cannot easily adduce evidence of revenue and costs because such information lies within the defendant’s knowledge and records. The court therefore applied the established approach that, where evidence is incomplete, the court must make a judicial estimation based on available indications. It referred to Bosch Corp v Wiedson International (S) Pte Ltd and others for the proposition that the court must do the best it can on the whole of the material before it.
On the evidential front, the court scrutinised the defendant’s Summary Breakdown. The claimant argued that the Summary Breakdown was unreliable because it was unaudited and not supported by source documents. The court noted that the Summary Breakdown stated total revenue of $235,448.62 for the sale of 1,558 “COFAN” fans from 1 August 2021 to 31 October 2022, with costs of $144,894 and gross profit of $90,554.62. Yet the claimant contended that the Summary Breakdown omitted revenue of $124,500.40 from sales of 793 “COFAN” fans from 23 April 2021 to 31 July 2021, and that it was also incomplete for the later period because it did not include 11 invoices (as alleged by the claimant).
The court also considered the defendant’s explanation for the absence of source documents. The defendant said the documents were misplaced and lost during shifting of its office from Yishun Bizhub to WCEGA Tower Premises in August 2023. The court had earlier ordered disclosure in HC/SUM 960/2024 after finding a reasonable suspicion that the documents were in the defendant’s possession and control. In the account of profits inquiry, the court had to decide whether the defendant’s asserted loss of documents should lead to an adverse inference or at least a reduced weight being placed on the Summary Breakdown. The court’s reasoning reflects a pragmatic approach: where the defendant cannot substantiate its figures with documents, the court may not accept its summary at face value and may instead estimate profits using the best available evidence.
In calculating revenue, the court addressed methodology and margin of error. Although the judgment extract provided in the prompt is truncated, it is clear that the court treated revenue generation as a central component and then applied a methodology to estimate revenue for the relevant “material period”. The court also addressed manufacturing costs, transport and logistics costs, rental, hire vehicle and staff costs, and other categories such as fans gifted to customers and corporate tax. This indicates that the court did not simply accept gross revenue and then deduct a single undifferentiated cost figure; rather, it analysed each cost category to determine whether it was attributable to the passing off conduct and whether it could be deducted in arriving at net profits.
Where documentary evidence was lacking, the court’s approach was consistent with the remedial purpose of disgorgement: it sought to approximate the defendant’s actual profits, but it did not allow the defendant’s evidential shortcomings to defeat the remedy entirely. The court’s final figure of $316,590.18 suggests that, after assessing the reliability of the Summary Breakdown and the missing sales/cost information, the court adjusted the revenue and/or cost deductions to reflect a more defensible estimate of profits made from the passing off activities.
What Was the Outcome?
The Assistant Registrar found that the defendant was liable to pay the claimant $316,590.18 in account of the profits made in respect of its acts of passing off. This quantification resolved the inquiry that had been reserved after summary judgment on liability and the injunction.
Practically, the decision confirms that even where a defendant provides only an unaudited sales summary and cannot produce source documents, the court will still proceed to estimate profits and order disgorgement. The remedy therefore remains effective as a deterrent against unjust enrichment, notwithstanding evidential difficulties.
Why Does This Case Matter?
This case is significant for practitioners because it illustrates how Singapore courts handle account of profits inquiries in passing off disputes where the defendant’s records are incomplete or not produced. The court’s insistence on the purpose of disgorgement, coupled with its willingness to make judicial estimates, provides guidance on what claimants can expect when evidence is imperfect and what defendants risk when they cannot substantiate their financial disclosures.
From a litigation strategy perspective, the decision underscores the importance of disclosure and document preservation. The earlier disclosure order (HC/SUM 960/2024) and the court’s finding of reasonable suspicion about possession and control of documents show that courts will not readily accept claims of missing records. In an account of profits inquiry, the absence of source documents can lead to the court discounting the defendant’s summary and using alternative estimation methods.
For students and lawyers, the case also provides a useful framework for structuring submissions on (i) revenue calculation methodology, (ii) allocation and attribution of costs and expenses, and (iii) the treatment of margins of error and evidential uncertainty. The court’s analysis of categories such as manufacturing, logistics, rental, staff costs, and corporate tax indicates that cost deductions are not automatic; they must be justified as attributable to the relevant wrongful conduct and supported by the best available evidence.
Legislation Referenced
Cases Cited
- Dart Industries Inc v Décor Corporation Pty Ltd and another [1993] 179 CLR 101
- Main-Line Corporate Holdings Ltd v United Overseas Bank Ltd and another (First Currency Choice Pte Ltd, third party) [2011] SGHC 268
- Bosch Corp v Wiedson International (S) Pte Ltd and others and another suit [2015] SGHC 105
- Triple D Trading Pte Ltd v Fanco Fan Marketing Pte Ltd [2023] 3 SLR 1417
- [2021] SGHC 33
- [2023] SGCA 45
Source Documents
This article analyses [2025] SGHCR 15 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.