law multi-part question and need support to help me learn.
1.I have attached the hypo questions in the files. Please read through all the materials.
2.I need you to find supporting caselaw references (only from the UK or Singapore) in the area of passing off (not trademark law) that can suppoert my answers to the two issues in the hypo question.
3.Each case law requires a proper summary case brief.
4.The key elements of a passing off claim known to date are: (1) goodwill, (2) misrepresentation, and (3) damage.
5.Need you to find in total 8-10 caselaw
The two questions from the hypo are:
i) Can Alan successfully argue that there is no passing off because X Corp has ceased to use its previous blue bird logo and the name Twitter?
You should do research on Singapore and UK passing off cases involving similar situations of ceasing to do business with reference to certain marks or names. Do not cite any cases involving infringement of Trade Marks Act, apart from the Singapore case I alluded to in paragraph 8.
(ii) Does Prof Marketer’s expert report help Alan to establish that there is no misrepresentation causing confusion amongst the Singapore public?
Again, please do research on both Singapore and UK passing off cases (and not cases involving Trade Mark infringement).
Requirements: 700
Dear Associate,
I need you to prepare a memo to help our firm advise Mr Alan Nest. Alan is the creator of the “Chatter” app that was launched in Singapore on National Day. I suppose that you and your friends will be familiar with this latest social media app, which Alan said has been overwhelmingly popular in Singapore. Like Mark Zuckerberg, Alan worked on this app when he was a student in University 4 years ago, testing it with university friends before formally launching it this year.
Chatter is a mobile app that may be downloaded on both IOS and Android phones. It has this eye-catching icon:
CHATTER Alan says that it works like Telegram as a messaging app, but is much more powerful. Users may use generative AI to create unique avatars for their profiles and are able to send images, GIFs and stickers that are created with generative AI. Chatter’s webpage describes its app this way:
3. In keeping with the emphasis on generative AI, Alan created Chatter’s icon using his own app. Inspired by the idea of a bird taking flights of fantasy, he prompted Chatter to generate a modern and minimalist logo of a bird in flight. Chatter’s website boasts about how its icon was “generated by itself” and “depicts a bird flying into unlimited worlds powered by your imagination”.
Alan was pleasantly surprised by the overwhelming reception of Singapore users. In the first two weeks of August, 1.5 million users downloaded the app, and by the end of September, this number increased to 3 million. According to aggregated data collected by Chatter, the app has been downloaded by diverse users aged 18 to 40 years. The app is available on all app stores for free. Since 1 September, Chatter introduced a paid subscription plan. Chatter users could pay monthly fees of US$5 or US$10 to generate up to 500 or 1,000 images/GIFs/stickers per month respectively. Under the free account, a user may only generate up to 200 images each month.
Alan’s elation was rudely interrupted by a letter of demand sent by Amazin LLP on 2 October. Amazin LLP, representing X Corp (formerly known as Twitter), accused Chatter of the tort of passing off in Singapore, claiming that Chatter caused the Singapore public to wrongly think that its app has been created by X Corp. They further asserted that Chatter’s icon looks strikingly similar to X’s previous icon of a bird, and its name is also similar to “Twitter”, a name strongly associated with X’s brand. If Chatter did not cease using its current icon and name by 20 November, X Corp would commence legal action in Singapore.
Alan is most perplexed that X Corp is accusing Chatter of passing off. Wasn’t the Twitter name and its blue bird icon replaced by X as part of Musk’s rebranding exercise this year? Alan is also adamant that he did not intend to mislead anyone into thinking that his app was linked to X. What is more, he could not have caused any confusion because Chatter has publicly stated that its app was created through generative AI.
You are very fortunate that some of your colleagues have done some background work on this case. They are stuck in a trial these few weeks, so you need to help out. Refer to the following information they have found:
(a) Fact sheet on X Corp summarising the key information on its history and current
circumstances (Annex A)
(b) We have asked Professor from School of Business to produce an expert report on whether the Singapore public is likely to be confused between Chatter’s logo and X’s earlier bird logo.
He surveyed 500 Singapore participants who use at least one social media app every day on their mobile phones, with ages ranging from 16 to 60 years.
100% of the respondents were aware of the X app, while 50% knew that X used to be called Twitter.
The participants were shown Chatter’s icon with the accompanying word “Chatter” and asked, “Which company do you think has created this app?” 20% selected option (1) X Corp (formerly known as Twitter), while 80% selected option (2) some other entity that is not X Corp.
In addition, my university classmate mentioned that he was involved in a High Court case involving Twitter last year and the judge was a former academic. This suit started before Twitter was bought over by Elon Musk. It seems that the claim was based on breaches of the Trade Marks Act in Singapore instead of the tort of passing off. In Alan’s situation, X Corp has only accused Chatter of passing off, and has not referred to any other action under the Trade Marks Act. However, some of the holdings in this High Court case could potentially help us in advising Alan on whether the Chatter logo is similar to Twitter’s bird logo and could thus cause confusion.
9. Taking into account the above information, please prepare a legal memorandum answering these questions:
(a) Will X Corp be successful in establishing the tort of passing off? In particular, please address these issues:
(i) Can Alan successfully argue that there is no passing off because X Corp has ceased to use its previous blue bird logo and the name Twitter?
You should do research on Singapore and UK passing off cases involving similar situations of ceasing to do business with reference to certain marks or names. Do not cite any cases involving infringement of Trade Marks Act, apart from the Singapore case I alluded to in paragraph 8.
(ii) Does Prof Marketer’s expert report help Alan to establish that there is no misrepresentation causing confusion amongst the Singapore public?
Again, please do research on both Singapore and UK passing off cases (and not cases involving Trade Mark infringement).
(b) Based on your analysis, what further information do we need from Alan and what are his next steps?
Annex A: Fact Sheet on X Corp
Twitter Inc was founded on 21 March 2006 and incorporated in USA on 19 April 2007. The company was publicly listed on the New York Stock Exchange in 2014. It owned and operated the former Twitter platform, a microblogging and social networking service where registered users may post and interact with each other with messages known as “Tweets”.
The following Twitter bird logo has been used in Singapore. It is in the form of a fluttering hummingbird. The outlines of perfect circles shape the bird’s rounded belly and wings.
The Twitter app is free on IOS and Android platforms. In 2021, it
introduced a subscription service of US$4.99 a month that allows users to edit their tweets and access additional features such as bookmarks and customisable themes.
According to Statista, 22% of Twitter’s users in Singapore are aged 11 to 26 years, while 67% of Twitter users are aged 27 to 68 years old. A smaller percentage of 11% are 69 years and older.
According to StatCounter, Twitter’s market share amongst social media platforms in Singapore ranged from 14.73% to 21.36% from June to December 2022. According to Statista, there were 5.51 million social media users in Singapore in 2022.
• Elon Musk bought Twitter Inc in October 2022. Twitter’s Singapore office, which used to be Twitter’s Asia-Pacific headquarters, was shut in January 2023. Twitter Inc was acquired by X Corp, a company owned by Musk, in April 2023.
On 24 July 2023, Musk announced a name change from Twitter to X and unveiled a new X logo:
Since December 2022, X’s subscription service fees increased from US$4.99 to US$11 month.
According to StatCounter, X Corp’s social media market share in Singapore dropped from a high of 25.13% in June to 17.85% in September 2023. According to Statista, there were 5.67 million social media users in Singapore in 2023.
