any other form of genuine commercial use of the Defendant's Mark in the course of trade in Malaysia. [70] The Defendant, despite having been duly served with this Application and having had ample opportunity to file evidence demonstrating use of the Defendant's Mark, has failed to appear and has adduced no evidence whatsoever of any use of the Defendant's Mark in Malaysia. No evidence of genuine use has been placed before this Court, and no proper reasons for non-use have been advanced. [71] In Edmark Industries Sdn Bhd v Zaghrat Moustapha [2022] MLJU 3564 at [28], the High Court held that where the defendant ! ! 32! ! failed to enter appearance or file any affidavit or submissions in opposition, the defendant had failed to show either use of the impugned mark or proper reasons for non-use. [72] In Krisma Industries Sdn Bhd v Registrar of Trade Marks & Anor [2020] 1 LNS 1487, the High Court held that where the registered proprietor fails to adduce any evidence of genuine use, and no proper reasons for non-use are advanced, revocation under section 46(1)(a) is warranted. Similarly, in Guccio Gucci SpA v Exxon Chemical (M) Sdn Bhd [2006] 6 CLJ 583, the court revoked a trademark registration where the registered proprietor had failed to demonstrate genuine use within the prescribed statutory period. [73] In Arvin Meritor Inc v Registrar of Trade Marks [2007] 10 CLJ 32, the High Court emphasised that the purpose of the non-use provisions is to ensure that the register is not used as a "warehouse" for marks that the proprietor has no genuine intention to use. A mark that is merely registered and "warehoused" without being put to genuine use is properly liable to revocation. [74] In the present case, the Defendant is a natural person based in Taiwan with no apparent connection to the cosmetics or skincare industry, and there is no evidence that the Defendant has any business presence in Malaysia. The evidence before this Court, which is entirely uncontroverted, establishes that the Defendant's Mark has not been put to genuine use in Malaysia within the period of three years following the date of completion of the registration procedure, and that such use has been suspended for an ! ! 33! ! uninterrupted period of three years, with no proper reasons for non-use being advanced. [75] I am therefore satisfied that the grounds for revocation under both sections 46(1)(a) and 46(1)(b) of the Act have been established. The Defendant's Registration is liable to be, and is hereby, revoked for non-use. The Plaintiff’s Prior Use of the Plaintiff’s “FATION” Mark [76] Before addressing the individual grounds of invalidation, learned counsel for the Plaintiff sought to highlight the Plaintiff’s position as prior user and common law proprietor of the Plaintiff’s FATION Mark in Malaysia at the material time. This issue is material because the Plaintiff’s case on deception and confusion, passing off, and fraud and/or misrepresentation is premised on the Plaintiff having prior use, reputation and goodwill in the Plaintiff’s FATION Mark by the time the Defendant applied to register the Defendant’s Mark on 9.1.2020. [77] In determining prior use, reputation and goodwill for trade mark purposes, the Courts have adopted a realistic and progressive approach, recognising that use, reputation and goodwill may be established through international exposure, internet-based offers for sale, and other forms of cross-border commercial presence accessible to the Malaysian public. [78] The position in Walton International Ltd v Yong Teng Hing (b/s Hong Kong Trading Co) [2011] 5 MLJ 397, is that proprietorship ! ! 34! ! of a trademark cannot be appropriated in Malaysia merely because the foreign proprietor’s use in Malaysia is limited. The Court recognised that, in the modern age of technology and communications, the Malaysian public may already be aware of and associate a foreign mark with the goods of its true proprietor, even if local use has been modest. Accordingly, even a small amount of use may suffice to protect the foreign proprietor against a later applicant whose use is likely to cause confusion. The Court of Appeal held as follows in Walton International Ltd: “[25] If at the date of application for registration of the trademark by the respondent, the trademark, although it has not been used in Malaysia, has become associated in the mind of the public with the appellant's goods, then the respondent cannot claim or appropriate proprietorship of the said trademark. There are no artificial limits on geographical areas to which reputation or goodwill can or cannot extend. Thus, the appellant's reputation or goodwill in the 'GIORDANO' trademark outside Malaysia prior to the respondent's use of the said mark in 1992 reinforces and supplements the reputation and goodwill of the appellant's 'GIORDANO' mark in Malaysia. [26] Modern technology and communications have improved to such an extent that the public in Malaysia would be aware of foreign marks even though such marks had not been previously used in Malaysia. Confusion and deception have no boarders in these days of information technology age. A small amount of use of the 'GIORDANO' trademark by the appellant is sufficient to prevent the respondent or any other party from claiming proprietorship in the said mark if its use by the ! ! 35! ! respondent is likely to cause confusion to the public. The appellant in the present case has through its licencees used the 'GIORDANO' trademark in Malaysia prior to the filing date of the respondent's application for registration.” [emphasis added] [79] Likewise, in Abercrombie & Fitch Co & Anor v Fashion Factory Outlet KL Sdn Bhd & Ors [2008] 4 MLJ 127, the High Court recognised that the sale of goods bearing a trademark over the internet or via a website constitutes use of the trademark, and that websites offering such goods for sale to customers worldwide, including in Malaysia, are capable of supporting the requisite use and reputation: “[71] … As affirmed by the deponent in Shane’s affidavit, the plaintiffs operate and maintain three e-commerce websites namely www.abercrombie.com, www.abercrokbiekids.com and www.gilisterco.com which sell their products to various countries worldwide including Malaysia. [72] The plaintiff ’s products including articles of clothing bearing the second plaintiff ’s registered trademarks are available for purchase over the internet. At all material times, the plaintiffs maintained and continue to maintain, inter alia, that the following websites which offer for sale the plaintiff ’s products bearing, the ‘ABERCROMBIE & FITCH’ and ‘ABERCROMBIE’ trademarks: www.abercrombie.com and www.abercrombiekids.com. All these websites are accessible to all customers who have access to the internet including customers and/or potential customers in Malaysia. The plaintiffs have in fact sold ! ! 36! ! and shipped products bearing the second plaintiff ’s registered trademarks to Malaysia customers in Malaysia. [73] Sale of goods bearing a trademark over the internet or via a website has been recognised as a use of the trademark.” [emphasis added] [80] Similarly, in SRAM, LLC v Huan Schen Sdn Bhd [2019] 6 MLJ 56, the Court of Appeal rejected an unduly restrictive interpretation of “use” as confined to domestic physical use in Malaysia, and held that extensive international use and exposure through internationally broadcast events received in Malaysia were relevant in establishing reputation, goodwill, and prior use for the purposes of trade mark protection. In SRAM, LLC the Court held as follows: “[43] We note that the learned JC had allowed the plaintiff’s application to expunge four of the defendant’s five registered trademarks primarily on the premise that the plaintiff had demonstrated the use of his goods with the similar trademark ‘SRAM’ in Malaysia in 2002. The finding of the learned JC was also that the absence of evidence of the defendant’s use of the defendant’s trademarks in Malaysia prior to 2002 also meant that it was the plaintiff who was the first user and the common law proprietor of the defendant’s trademarks. The learned JC appears to have placed undue importance to use as domestic use ie in Malaysia only. [44] In this respect we agree with learned defendant’s counsel’s submission that the learned JC had erred in law in his finding that the extensive use of the plaintiff’s ! ! 37! ! trademark outside Malaysia was an irrelevant factor for consideration. This restrictive interpretation of ‘use’ as restricted to domestic territory is not supported by authorities. Courts have recognised that reputation or goodwill can be acquired outside Malaysia. … [45] Thus, the learned JC had erred in not giving due weight to the widely used marks of the defendant in the international sports events as well as the fact that such events which featured the defendant’s trademarks were broadcasted in Malaysia and thus the defendant’s trademarks would have been publicised to the Malaysian public.” [emphasis added] [81] The position in Thrifty Rent-A-Car System Inc v Thrifty Rent-A-Car Sdn Bhd & Anor [2004] 7 MLJ 567 is that, in determining whether a foreign trader has reputation and goodwill sufficient to resist appropriation of its mark in Malaysia, the Court is entitled to take into account the foreign trader’s extensive reputation and promotional activities outside Malaysia. The High Court adopted a liberal and progressive approach, recognising that in the modern age of technology and communications, goodwill and reputation are not confined by territorial borders in any rigid sense. Thus, even where the mark had not yet been conventionally used in Malaysia at the material time, the foreign trader’s reputation abroad could reinforce and supplement its reputation and goodwill in Malaysia. The Court also accepted that evidence of overseas promotional materials was relevant for this purpose. The High Court stated as follows in Thrifty Rent-A-Car System Inc: ! ! 38! ! “[7](b) … If at the date of application for registration by a local trader, the foreign trader’s mark, although it has not been used in Malaysia, has become associated in the minds of the public with the foreign trader’s goods, that local trader cannot appropriate or claim proprietorship of the foreign trader’s mark. I think there are no artificial limits on geographical areas to which reputation or goodwill can or cannot extend. Thus, the Appellant’s reputation or goodwill in the THRIFTY mark outside Malaysia since the 1960s also reinforces and supplements the reputation and goodwill of the Appellant’s THRIFTY mark in Malaysia. This Court should take judicial notice that modern technology and communications have improved to such an extent that the public in Malaysia would be aware of foreign marks even though such marks had not been previously used in Malaysia. Confusion and deception have no borders in these days of the information-technology age. … [38] Thus, evidence and promotional materials of the mark by the Appellant outside Malaysia are relevant to this proceeding. I would move forward and advance with the changing times and technology rather than be shackled by the ghosts of the past.” [emphasis added] [82] In the circumstances, the Plaintiff submitted that it was the prior user and common law proprietor of the Plaintiff’s FATION Mark in Malaysia for the following reasons: ! ! 39! ! a) The Plaintiff devised and began using the Plaintiff’s FATION Mark in or around 2019, which was prior to the date of application of the Defendant’s Registration on 9.1.2020. b) The Defendant has not adduced any evidence to show that he used the Defendant’s Mark in Malaysia prior to, or even after, the application date of the Defendant’s Registration. c) The Plaintiff’s FATION Mark was applied to the Plaintiff’s FATION Products, which were offered for sale through, among others, the Plaintiff’s Websites, and those websites were accessible to internet users worldwide, including consumers in Malaysia. [83] Based on the evidence before this Court, I find that the Plaintiff's prior use of the FATION Mark was neither trivial nor isolated. The evidence demonstrates that the FATION Mark has been continuously and extensively promoted and advertised to both the trade and the public, and that the Plaintiff has recorded substantial sales of its FATION Products while expending significant sums on the promotion and advertisement of the FATION Mark in the Republic of Korea and internationally since 2019. These findings further support the Plaintiff's case that it had already acquired substantial reputation and goodwill in the FATION Mark by the time the Defendant filed its application on 9.1.2020. [84] Further and in any event, the Plaintiff's claim to reputation, goodwill, and commercial interest in the FATION Mark is reinforced by the fact that the Plaintiff's FATION Products are now promoted, distributed, ! ! 40! ! offered for sale, and sold in Malaysia through, among others, the official FATION flagship store on e-commerce platforms such as Shopee and Lazada; social media accounts on Facebook, Instagram, and TikTok; and at Guardian retail outlets. Although these activities postdate the Defendant's application on 9.1.2020, they are nonetheless relevant insofar as they corroborate the genuineness and continuity of the Plaintiff's use of the FATION Mark in Malaysia and confirm the commercial reality of the Plaintiff's ongoing business under that mark in this jurisdiction. [85] In the premises, having regard to the totality of the evidence, I find that by the time the Defendant applied to register the Defendant's Mark on 9.1.2020, the Plaintiff had already acquired the requisite prior use, reputation, and goodwill in the FATION Mark. The Plaintiff is therefore the prior user and common law proprietor of the FATION Mark in Malaysia. F. INVALIDATION OF THE DEFENDANT'S REGISTRATION [86] In addition, and in the alternative to the Plaintiff's claim for revocation under section 46 of the TMA 2019, the Plaintiff also seeks a declaration that the Defendant's Registration is invalid pursuant to section 47 of the same Act. [87] The Plaintiff relied on the following grounds of invalidation: a. pursuant to section 47(1) read with section 23(5)(a) of the TMA 2019, the Defendant’s Mark was registered in breach of section 23 because the use of the Defendant’s Mark is likely to deceive ! ! 41! ! or cause confusion to the public having regard to the Plaintiff’s FATION Mark; b. pursuant to section 47(3)(b) read with section 24(4)(a) of the TMA 2019, the Defendant’s Registration is liable to be declared invalid because the use of the Defendant’s Mark in Malaysia is prevented by the Plaintiff’s earlier right under the law of passing off; c. pursuant to section 47(6) of the TMA 2019, the Defendant’s Registration is liable to be declared invalid on the ground that it was procured by fraud and/or obtained by misrepresentation; and d. pursuant to section 47(1) read with section 23(5)(d) of the TMA 2019, the Defendant’s Mark was registered in breach of section 23 because the Defendant’s Mark would not be entitled to protection by this Honourable Court. [88] Before dwelling on each of the limbs raised above, I find it apposite to discuss the principle governing invalidation proceedings. The purpose of the invalidation provisions under the TMA 2019 is to ensure that trademarks that ought not to have been registered, or which were registered in contravention of the provisions of the Act, may be removed from the register so as to safeguard the integrity of the trademark system and the legitimate interests of trademark proprietors and the public at large. ! ! 42! ! a) Invalidation under section 47(1) of the TMA 2019 read with section 23(5) (a) [89] Section 47(1) empowers the Court to invalidate a registered trademark at the instance of an aggrieved person where the registration was obtained in breach of section 23 pf the TMA 2019. Section 23, in turn, sets out the absolute grounds upon which registration must be refused. In particular, section 23(5)(a) provides that a trademark is not registrable if its use is likely to deceive or cause confusion to the public, or would be contrary to any written law. The combined effect of these provisions is that a trademark which ought not to have been registered because it falls within an absolute ground for refusal may subsequently be declared invalid by the Court. Both section 47(1) and 23(5) (a) of the TMA 2019 provides as follows: “47. Invalidation of registration by Court