ATMD Converts to Limited Liability Partnership

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      Alban Tay Mahtani & de Silva LLP

            January 2008                                                         A Single Test To Determine The Existence Of
                                                                                     A Duty Of Care For Claims For Pure
                                                                                    Economic Loss And Physical Damage

                                                                                   ATMD Successfully Represents Hyundai
                                                                                    Mobis in Opposition Proceedings by
                                                                                      Mobil Petroleum Company, Inc
             A Newsletter of Alban Tay Mahtani & de Silva LLP

                                                                                             Non-solicitation Clauses
                                                                                - Man Financial (S) Pte Ltd v. Wong Bark Chuan David

  ATMD Converts to
  Limited Liability Partnership                                                                        “...This conversion is
  On 1 January 2008, ATMD converted to          the management of a legal business. This
                                                                                                       important as we plan
  a limited liability law partnership under     conversion to LLP is an important step                      for the future
  the name of Alban Tay Mahtani & de            in our plans for business growth in the
  Silva LLP.                                    future and to ensure that the best interests
                                                                                                          expansion of our
                                                of our clients are maintained at all times”                     firm.”
  Managing Partner, Alban Kang, noted
  “Like many other law firms in Singapore,      All other details of the business of ATMD
  we have been assessing the benefits of        including the partners and business                                  Alban Kang
  conversion to LLP and its importance to       address remain unchanged.

                                                                       Our other practice groups have also done immensely well. In
  A word from our                                                      the recent Asia Legal Pacific 500 Rankings for 2007/2008, we
      Managing Partner                                                 were recognized for our leading practices in mergers &
                                                                       acquisitions, dispute resolution & arbitration, construction,
                                                                       projects and energy.
A very Happy New Year to all. Once
again, as we embark on what 2008                                       And for the first ever issue of the Who’s Who Legal 2008 (Singapore
brings, I would like to thank you for                                  edition), 4 of our partners were ranked as leading in Singapore
your support over the last year. We                                    in varied areas such as trademarks, patents, arbitration, franchising,
had an immensely gratifying year in                                    labour and competition law
2007 filled with many ‘firsts’ and a
number of significant achievements.                                    We were also involved in advising clients in a number of new
                                                                       areas in Singapore. Some of these included being part of the
We ended 2007 off on a high note when ATMD was voted for               legal team involved in the tender of the first PPP (public private
the second time as Singapore’s top IP firm of the year at the Asia     partnership) in Singapore and advising on the first sale of carbon
Law IP Awards 2007. This is one of the key awards in the Asia          credits in Singapore
Pacific calendar organized by the Euromoney Group. We are of
course very pleased that a firm as young as ours has now won           We have already started 2008 with a bang with our conversion
this prestigious award twice.                                          to a Limited Liability Law Partnership (LLP) on 1 January 2008.
                                                                       This conversion is important as we plan for the future expansion
This win was extra sweet as it came on the back of our earlier         of our firm.
win in March, where for the third consecutive year, we won the
award for Singapore IP firm of the year at the Asian Legal Business    I say without a shadow of doubt that our success, past and future,
(SEA) Awards 2007.                                                     is as a result of you – our clients, associates and friends. I thank
                                                                       you for your support over the years and look forward to more
Our IP Practice was also ranked in the top tier in the first ever      good years together.
issue of the highly acclaimed Chambers & Partners Asia edition
and for the fifth consecutive year, ATMD has been voted in the         Let’s drink a toast to 2008. May it bring you all you so richly
top category of IP firms in Singapore by the Asia Pacific Legal        deserve!
500.                                                                                                                        Alban Kang

39 Robinson Road #07-01 Robinson Point Singapore 068911 Tel 65 6534 5266 Fax 65 6223 8762 Email
                                                                            Alban Tay Mahtani & de Silva LLP                    39 Robinson Road #07-01 Robinson Point, Singapore 068911
                                                                                                                                Tel: 65 6534 5266 Fax: 65 6223 8762

A Single Test To Determine The Existence Of A Duty Of Care For Claims
For Pure Economic Loss And Physical Damage
         In the recent Court of Appeal                                       Since factual foreseeability is                             foreseeability and the first stage of the
decision of Spandeck Engineering (S) Pte                          likely to be fulfilled in most cases, the CA                          legal proximity test, a prima facie duty of
Ltd v Defence Science Technology Agency                           did not see the need to include this as part                          care arises. Policy considerations should
[2007] SGCA 37, the CA reviewed the law                           of the legal test for a duty of care. Rather,                         then be applied to the factual matrix to
on duty of care and determined that rather                        it is a threshold question which the court                            determine whether or not to negate this
than have different tests depending on                            must be satisfied is fulfilled, failing which                         duty. Relevant policy considerations would
whether the type of damages claimed are                           the claim does not take off.                                          include the presence of a contractual
pure economic losses or physical damages,                                                                                               matrix which has clearly defined the rights
it was preferable to have a single test in                                  The CA held that the first stage of                         and liabilities of the parties, and the relative
order to determine the imposition of a duty                       the test to be applied to determine the                               bargaining position of the parties.
of care in all claims arising out of                              existence of a duty of care is that of
negligence, irrespective of the type of                           proximity, ie, that there be sufficient legal                                  The CA also held that the two
damages claimed, and this should include                          proximity between the claimant and                                    stages are to be approached with reference
claims for pure economic loss, whether                            defendant for a duty of care to arise.                                to the facts of decided cases although the
they arise from negligent misstatement or                         Proximity includes physical, circumstantial                           absence of such cases is not an absolute
acts/omissions.                                                   as well as causal proximity. The focus is                             bar against a finding of duty.
                                                                  on the closeness of the relationship
         This “single test” is premised on                        between the parties themselves.                                                                                     Edward Lam
proximity and policy considerations,                                                                                                                                                      More...
preceded by a preliminary requirement of                                  Assuming a positive answer to the
factual foreseeability.                                           preliminary question of factual                                               Non-solicitation Clauses
                                                                                                                                                 Employers commonly include express
                                                                                                                                        clauses in employment contracts which restrict
 ATMD Successfully Represents Hyundai Mobis                                                                                             employees from, upon termination, competing
 in Opposition Proceedings by Mobil Petroleum                                                                                           with the employer in a similar trade, poaching
 Company, Inc                                                                                                                           former colleagues, and soliciting and dealing
                                                                                                                                        with the employer’s customers.
            The Intellectual Property Office                              to those for which the earlier trade
                                                                                                                                                 However, Singapore courts have
of Singapore recently issued a decision                                   mark was protected, thus indicating
                                                                                                                                        generally adopted a strict approach towards
dismissing the Opposition brought by                                      a connection between those goods
                                                                                                                                        such covenants in the employment context.
Mobil Petroleum Company, Inc (“Mobil”)                                    or services and the proprietor of the
                                                                                                                                        The main reason for this approach lies with
against Hyundai Mobis’ (“Hyundai”)                                        earlier trade mark and resulting in
                                                                                                                                        the disparity of bargaining power between the
application for the trade mark “MOBIS”                                    confusion and damage (Section 8(3)
                                                                                                                                        employer and employee. The common thread
in International Class 12. Hyundai had                                    TMA);
                                                                                                                                        through most of these cases is that only
applied for registration of the trade mark
                                                                                                                                        legitimate interests of the employer are
“MOBIS” in Class 12, in respect of goods                         (3)      that the use of the MOBIS mark in
                                                                                                                                        accorded protection via such covenants post-
such as automobile apparatus and                                          Singapore in relation to vehicle parts
                                                                                                                                        termination. These legitimate interests include
equipment, automobile mechanisms,                                         was liable to be prevented by virtue
                                                                                                                                        protection of trade secrets or proprietary
automobile componentary segments and                                      of the law of passing off (Section
                                                                                                                                        information or the maintenance of a stable
parts, fittings and accessories for                                       8(7) TMA);
automobiles. Mobil filed an opposition
on the basis of their earlier applications                       (4)      that Hyundai had made its
                                                                                                                                                   Therefore, restrictive covenants are
and registrations for the trade mark                                      application in bad faith (Section 7(6)
                                                                                                                                        void unless they meet the twin tests of
“MOBIL” in various classes.                                               TMA); and
                                                                                                                                        reasonableness, i.e. the restrictive covenant
                                                                                                                                        must be (i) reasonable as between the parties;
          Mobil had opposed Hyundai’s                            (5)      that the “MOBIS” mark was devoid
                                                                                                                                        and (ii) reasonable in the public interest. To
application for the trade mark “MOBIS”                                    of any distinctive character (Section
                                                                                                                                        be enforceable, restrictive covenants must also
on several grounds, namely:                                               7(1)(b) TMA).
                                                                                                                                        seek to protect a legitimate proprietary interest
                                                                                                                                        and the covenant must go no further than
(1)   that the marks were confusingly                                      The Principal Assistant Registrar
                                                                                                                                        necessary to protect that interest.
      similar (Section 8(2)(b) of the Trade                      of Trade Marks (“PAR”) found that Mobil
      Marks Act (“TMA”));                                        had failed to prove each of the above
                                                                                                                                                  In the recent Court of Appeal (“CA”)
                                                                 grounds and accordingly dismissed the
                                                                                                                                        decision in Man Financial (S) Pte Ltd v Wong
(2)   that the “MOBIS” mark was identical                        Opposition. Mobil has filed an appeal
                                                                                                                                        Bark Chuan David [2007] SGCA 53, it was
      or similar to an earlier trade mark                        against the PAR’s decision.
                                                                                                                                        argued by the employer, and accepted by the
      which was well known in Singapore
                                                                                                                                        CA, that the maintenance of a stable and trained
      and was to be registered for goods                                                                 Ang Kai Hsiang
                                                                                                                                        workforce may be considered a legitimate
      or services which were not similar                                                                         More...
                                                                                                                                        proprietary interest. The CA recognized that
                                                                                                                                        this interest can be protected using a non-
                                                                                                                                        solicitation clause.
                                                                                                                                                                         Claire Gomez
      39 Robinson Road #07-01 Robinson Point Singapore 068911 Tel 65 6534 5266 Fax 65 6223 8762 Email
      This update provides a summary only of the subject matter covered. The summary is not intended nor should it be relied on as a substitute for legal or other professional advice. If you require advice on a
      specific legal problem, please contact a partner of the firm.