The High Court has determined that the Telekung Suqainah Lite by Airaz Technologies Sdn Bhd imitates and infringes upon the design of the Telekung Siti Khadijah Harmoni owned by Siti Khadijah Apparel Sdn Bhd.
In the verdict of the lawsuit on 8th February 2024, the High Court found that the Telekung Suqainah Lite by Airaz Technologies as the Plaintiff, imitated and infringed upon the Telekung Harmoni’s design owned by Padzilah Enda and Siti Khadijah Apparel as the Defendants.
Timeline of the Case
The court dismissed the main suit, which was Airaz Technologies’ application to invalidate the registration of the Industrial Design of Telekung Siti Khadijah Harmoni filed on 2nd June 2022.
In the counterclaim filed on 14th December 2022, Siti Khadijah Apparel, represented by Hafiz Zubir & Co lawyers; Ahmad Hafiz Zubir and Iman Danial Hakim, asserted thre were significant similarities in the design on the head and chin area of Airaz’s Suqainah Lite prayer veil, imitating Siti Khadijah Harmoni.
Siti Khadijah Apparel claimed that Airaz Technologies’ actions in selling, advertising, and distributing the Telekung Suqainah Lite violated its industrial design rights by imitating and replicating its Telekung’s design. As a result, Siti Khadijah Apparel sought a declaration that Airaz Technologies infringed upon its industrial design rights under Section 32 of the Industrial Designs Act 1996.
Meanwhile, lawyer Ahmad Hafiz, stated that the court found clear imitation by Airaz Technologies through the design of the involved Telekung. Ahmad Hafiz said the court also acknowledged sufficient efforts by Siti Khadijah in producing and manufacturing the Telekung Harmoni, making it a new and original design.
Plaintiff to pay costs of RM 70,000 to the Defendants
The court ordered Airaz Technologies to pay costs of RM70,000, and a date will be set to hear for the Assesment of Damages payable by Airaz Technologies.
In his decision, Justice Azlan also ordered Airaz Technologies to pay general damages, exemplary damages, and aggravated damages to be assessed later. The court will estimate the loss. Alternatively, the court ordered an account of profits based on the sales revenue of Airaz’s Telekung Suqainah Lite under the sub-brand Suqainah.
Decision by the High Court
The Judicial Commissioner of the High Court, Justice Azlan Sulaiman, in his decision stated that after examining samples of Telekung Suqainah Lite and visually comparing them with the Telekung Harmoni design, he found essential features of Telekung Harmoni also present in Suqainah Lite. Justice Azlan mentioned that the court found the imitation of the Telekung Harmoni which was already sold and available in the market before the Plaintiff started selling Telekung Suqainah.
In his decision, Justice Azlan stated that Airaz Technologies failed to provide sufficient evidence to back their allegation alleging the industrial design of Siti Khadijah’s Telekung Harmoni as not being original or new. “I also found that the Plaintiff failed to present anything during the trial, any samples of any prayer veil or physical specimen disclosed to the public or already in the market, which was alleged to lack the characteristics of originality or novelty of Siti Khadijah’s Telekung Harmoni,” he said.