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Fusionexcel (Fiji) Limited v Angco [2012] FJHC 962; HBC27.2012L (21 March 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION


Civil Action No: HBC 27 of 2012L


BETWEEN:


FUSIONEXCEL (FIJI) LIMITED

Plaintiff


AND:


RAYMUND CAESAR ANGCO

Defendant


JUDGMENT FOR INTERIM INJUNCTION


Judgment of: Inoke J.


Counsel Appearing: Ms Narayan (Plaintiff)

Mr K Vuataki (Defendant)


Solicitors: Diven Prasad Lawyers (Plaintiff)

Vakaloloma & Assocs (Defendant)


Dates of Hearing: 14 March 2012

Date of Judgment: 21 March 2012


INTRODUCTION


[1] The plaintiff filed an ex-parte motion for interim injunctions on 21 February 2012. I did not think that the application was of such urgency that it should proceed ex-parte in that the parties had been trying to resolve their differences over several months now without success. I directed it to be issued and heard inter-partes. This is my judgment after hearing the hearing.

THE BACKGROUND


[2] The plaintiff is a locally registered company whose principal is Mr John Samisoni.
Mr Samisoni swore an affidavit on behalf of the company. He has signed a license agreement with a Malaysian company, FusionExcel International, to sell a line of products known as FusionExcel Quantum Science Scalar Energy products in Fiji. He intends to assign the licence to the plaintiff company once other formalities are completed. The defendant is also a seller of these products in Fiji. They are marketed as "health products". They are said to be made from 70 volcanic minerals which are fused together at the molecular level, and which produce a quantum molecular effect called "a scalar electro-magnetic standing wave". These waves are claimed to enhance and improve a person's health by reducing the surface tension and viscosity of the water molecules in the human body. Potential benefits are said to include relief from the symptoms of kidney disease, high blood pressure, sleep problems, diabetes, stroke and digestive problems.


[2] Mr John Samisoni attached an email from the international company to the effect that the plaintiff is authorised to pursue this claim in Fiji. The email also acknowledged that Mr Samisoni is the exclusive country licensee in Fiji. He claims that the defendant is selling fake products to customers in Fiji and named two purchasers of such products. Mr Samisoni also deposed that when he tested these products he found the claims of counterfeit products to be true. He had asked the defendant to reveal the sources of these fakes but the defendant has refused to divulge them. Negotiations with and requests for the defendant to stop selling these fakes have failed. Mr Samisoni also claims that the defendant has lost his official status with the international company as a reseller, distributor and stock holder of FusionExcel products, which is also confirmed by email from FusionExcel International.

[3] The defendant in his affidavit in reply refutes the claim that he is selling fakes. He claims that most of his scalar energy products are manufactured by Bioexcel International of Japan and are superior to the FusionExcel products. He admits that the plaintiff is licensed to sell FusionExcel products but says that the licence is non-exclusive. He had existing FusionExcel products which he bought from a supplier in Fiji prior to the plaintiff commencing business in Fiji. He says that Mr Samisoni's motives are to discredit him as an opposing business man.

THE CURRENT APPLICATION


[4] The motion sought several interlocutory orders but I think only three of them, with amendments, should be considered. They are:

[5] The amendments made to the motion are the deletion of the phrases "as he does not have the licence to do so" from paragraphs (a) and (c) and "which misleads the general public that it is genuine products" from paragraph (b). For a more precise description and identification of the products the word "Scalar" is inserted in all paragraphs.

[6] The first question that I have to decide is whether the plaintiff company is entitled to bring this action and application. It is rightly conceded that the Malaysian company, as the owner of the patent products, would have been able to bring this action. It is settled that the owner of patent rights in a product is entitled to bring an action to stop its product from being passed off. See, for example, Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Ltd [2004] FJCA 59; ABU0011.2004S & ABU0011A.2004S (26 November 2004).

[7] The plaintiff has a right as the exclusive country licensee to protect its interests as a seller of these products. Much was made by counsel for the defendant that the licence is non-exclusive but the fact is that the plaintiff is the only licensee in Fiji and the Malaysian company has acknowledged the plaintiff as an exclusive licensee. The Malaysian company has authorised the plaintiff by email, and there is no challenge to its authenticity, to bring this action and application to protect both their interests. I the circumstances I am satisfied that the plaintiff is competent to bring this application.

[8] Is there a serious issue to be tried? I accept the plaintiff's evidence that the defendant is selling FusionExcel products that are fakes. The weight of the affidavit evidence before me supports that conclusion. The defendant in his affidavit admits that he voluntarily submitted products to be tested. The parent company tested them and found them fakes. The defendant's answer was that maybe the products that were tested were not the ones sent by him but substitutes. I do not accept this as plausible. I am satisfied that the question of whether the defendant is selling and distributing FusionExcel products is an issue that should be tried and the plaintiff has satisfied the burden of proof.

[9] I think it is also settled that damages in such a case as this involving patent rights are not an adequate remedy: Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Ltd (supra).

[10] That leads me to determine whether the balance of convenience lies in favour of the plaintiff. The defendant says that most of the products that he sells come from a different manufacturer. So if he is prevented from selling FusionExcel products he will not be completely forced out of business. On the other hand, the plaintiff may suffer irreparable harm if the defendant is allowed to continue selling FusionExcel products, even though only some are fakes. It is impossible to check if the products are genuine unless tested. The defendant does not want them tested by the plaintiff. He wants them tested independently. That may involve the sending of all his products to Malaysia. He is not willing to disclose the sources of his FusionExcel products. He is rather evasive and uncooperative in having the dispute resolved. In the circumstances, I think it is only fair and just that I restrain him from selling any of the FusionExcel products whether supplied by the Malaysian company or by any other company until the final determination of this action.

CONCLUSIONS


[11] The plaintiff has locus to bring this action. There is a serious issue to be tried and damages are not an adequate remedy. The balance of convenience lies in favour of the granting of an interim injunction in favour of the plaintiff in terms of paragraphs (a), (b) and (c) as set out in paragraph 5 above.

COSTS


[12] The normal rule applies and the plaintiff is entitled to its costs which I summarily set at $1,500 to be paid within 21 days.

ORDERS


[13] I hereby order:

............................................................
Sosefo Inoke
Judge

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