Maxcare Success Sdn Bhd v Motionquest Sdn Bhd

Appellant(s): Maxcare Success Sdn. Bhd.

Respondent(s): Motionquest Sdn. Bhd.

• YA Dato' Che Mohd Ruzima Bin Ghazali
• YA Dato' Azizul Azmi Bin Adnan
• YA Dato Alwi Bin Abdul Wahab

• The plaintiff, the registered proprietor of the "Maxoil" trademark, had previously succeeded in expunging a similar "Maxxoil" mark from the register following prior litigation against a third party.
• The defendant, a distributor of lubricant products, rebranded its goods as "Maxx Performance" for the Malaysian market but reposted four videos on its official Facebook page that featured the infringing "Maxxoil" sign.
• The High Court dismissed the plaintiff’s claims, ruling that the social media posts did not constitute "use in the course of trade" because the infringing sign was not physically applied to the products sold by the defendant.

• Whether the tort of passing off was adequately pleaded in the statement of claim pursuant to the requirements of the Rules of Court 2012.
• Whether the republication of promotional videos containing an infringing sign on a commercial social media platform constitutes "use in the course of trade" under Section 54 of the Trademarks Act 2019.
• Whether the defendant’s awareness of the requirement to rebrand its products for the local market triggered the deeming provision of infringement under Section 54(4) of the Trademarks Act 2019.

• The Court affirmed the dismissal of the passing off claim, holding that material facts and the essential element of misrepresentation must be specifically pleaded and cannot be raised for the first time during after-trial submissions.
• The Court held that social media posts by a commercial entity constitute "use in the course of trade" and "advertising" under Section 54(3), as the platform's purpose is to promote goods, even if the sign is not applied to physical packaging.
• The Court found that the defendant had "reason to believe" the use was unauthorized due to the prior rebranding of its products, thereby triggering the deeming provision under Section 54(4) which treats such use as an infringement of the registered trademark.