chapter  7
11 Pages

Market survey in Malaysia

An impracticable and undesirable way to adduce evidence in trademark lawsuit
WithCheng Peng Sik

The respondent tendered a market survey report to support its claim that the appellant had not used the trademarks during the period of three years up to one month prior to the application. The market survey in Liwayway Marketing Sdn Bhd was conducted in the relevant outlets in three major locations in Malaysia. Market survey is sometimes conducted and introduced in trademark litigations in order to show the likelihood of confusion or deception, the meaning of a trademark to the public, or non-use of a trademark. The Federal Court found that the Judicial Commissioner at the High Court relied substantially on the evidence from the survey report. The Federal Court pointed out another two reasons why the market survey relied on by the respondent was defective. The Federal Court in Liwayway Marketing Sdn Bhd expressly endorsed the Whitford guidelines as the minimum criteria for market surveys to meet for it to be of use.