SINGAPORE Law and Practice Contributed by: Yvonne Tang, Lim Siau Wen and Ruby Tham, Drew & Napier LLC
• the balance of convenience lies in favour of grant - ing the injunction. Where damages are an adequate remedy for the plain - tiff if they succeed at trial, and if the defendant is in a financial position to pay them, an interim injunction would not normally be granted. If damages would not be an adequate remedy, the court will take whichever course appears to carry the lower risk of injustice if it should turn out to have been wrong at trial in the sense of having granted the injunction when it should have been refused, or of an injunction having been refused when it should have been granted. Injunctions prohibiting the disposal of assets will be granted only where the claimant can establish that: • there is a valid cause of action over which the court has jurisdiction; • there is a good arguable case on the merits of its claim; • the defendant has assets within jurisdiction; and • there is a real risk that the defendant will dissipate its assets to frustrate the enforcement of an antici - pated judgment of the court (additional considera - tions apply to applications for a worldwide Mareva injunction). Search orders will be granted only where: • the plaintiff has shown that it has an extremely strong prima facie case; • the damage suffered by the plaintiff would have been very serious; • there was a real possibility that the defendant(s) would destroy relevant documents; and • the effect of the Anton Piller order would be out of proportion to the legitimate object of the order. 10.2 Monetary Remedies Trade Marks Monetary remedies take the form of damages or an account of profits. An account of profits is an equita - ble remedy which may not be awarded if the infringer can establish an equitable defence such as estoppel, laches, acquiescence or delay.
Damages are compensatory in nature and are intend - ed to restore the plaintiff to the position they would have been in if the infringement had not occurred. For damages, loss must be proved, and general rules of causation will apply. On the other hand, the remedy of an account of profits seeks to disgorge unjust gains and the maximum payment is confined to the net prof - its attributable to the infringement. The remedies of damages and account of profits are mutually exclusive, with the exception that a court may award account of profits in addition to an order for damages for any amount that was considered in computing the damages. Where the infringement involves the use of a counterfeit trade mark, statutory damages are available as an alter - native form of damages. In awarding statutory dam - ages, the court has regard to various factors such as: • the flagrancy of the infringement; • any loss that the claimant has suffered or is likely to suffer by reason of the infringement; • any benefit shown to have accrued to the defend - ant because of the infringement; • whether there is a need for deterrence; and • all other relevant matters. Copyright Monetary remedies take the form of damages, addi - tional damages or an account of profits. The claimant may elect for statutory damages, as an alternative. The remedies of damages (including additional dam - ages), account of profits and statutory damages are mutually exclusive, with the exception that a court may award account of profits in addition to an order for damages for any amount that was taken into account in computing the damages. Damages may not be awarded for copyright infringe - ment if the defendant was innocent or could not have reasonably known that its act was infringing. However, the court is not prevented from ordering any other rem - edy for the infringement, including an account of profits. As with damages under trade mark infringement, damages are compensatory in nature, intended to
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