Henry Leung v Hing Ling Yu

The court heard an application by Henry Leung against Hing Ling Yu, a competitor in the manufacture and sale of clothing. Leung alleged that Yu engaged in misleading or deceptive conduct by imitating the distinctive 'get-up' of his branded clothing, thereby passing off her products as his. The dispute centred on the distinctiveness of Leung's branding, the requirement for exclusivity of reputation, and the potential for a serious question to be tried. Additionally, the application sought an interlocutory injunction to prevent Yu from continuing the alleged misleading conduct pending the outcome of the trial.

The legal issues before the court included whether Leung's 'get-up' was sufficiently distinctive to warrant protection under trade practices law, whether exclusivity of reputation was a necessary condition for passing off, and whether there was a serious question to be tried that warranted an interlocutory injunction. The court also needed to determine if granting an interlocutory injunction would have the practical effect of determining the final issue of the case.

In its decision, the court found that Leung's 'get-up' was distinctive enough to warrant protection, and there was a serious question to be tried regarding the alleged misleading conduct. The court emphasised that exclusivity of reputation was not a prerequisite for passing off claims. The court concluded that an interlocutory injunction would not have the practical effect of determining the final issue and thus declined to grant the injunction. The court found that while there was a serious question to be tried, the balance of convenience favoured denying the interlocutory relief at that stage.

The court ordered that the application for an interlocutory injunction be dismissed. The matter was to proceed to a full hearing to determine the merits of Leung's claims against Yu.