The striking similarities in the interior design and fixtures between the Defendant's premises (even while under renovation) and the Plaintiff's premises, as demonstrated by the comparison photographs. [28] I note with significance that the Defendant has conspicuously failed to file any affidavit from its owners, directors, or contractor in rebuttal of the contractor's evidence. The contractor, ALSHALABI MUHSSEN has deposed on oath that he was instructed to follow the exact design of the Plaintiff's premises. The WhatsApp group chat corroborates this. The Defendant's failure to controvert this evidence invites an adverse inference that the evidence is true. [29] Furthermore, the Plaintiff has adduced evidence of actual customer confusion which includes WhatsApp messages from the Plaintiff's customers enquiring whether the Defendant's premises constituted a new branch of the Plaintiff's business. As the Privy Council held in Reckitt & Colman Products Ltd v Borden Inc [1990] 1 All ER 873, misrepresentation may arise even if the public is unaware of the precise ownership of the brand, so long as they associate the get-up with a particular source. The evidence of customer enquiries is a direct indicator of actual confusion and potential deception. S/N W96j45a8jkKqmoABVy1nvA [30] The Defendant argues that the signboards of both parties are visually distinct in terms of colour, font, imagery, and layout. While there are visual differences in the signboards, the combined effect of the adoption of the name "Damascus" prominently, together with the alleged replication of interior design, creates a composite impression that raises a serious question of misrepresentation. As the Privy Council stated in Star Industrial Co Ltd v Yap Kwee Kor Trading as New Star Industrial Co [1976] 1 MLJ 149, passing off protects the business or goodwill likely to be injured by misrepresentation, not merely the mark or name. [31] I also take note of the inconsistency highlighted by the Defendant in the Plaintiff's submissions. At paragraph 49, Part G of the Plaintiff's submissions, the Plaintiff stated that it "saw no need to take issue with their use of the name." The Defendant argues this constitutes an admission that the Plaintiff does not claim exclusive goodwill in the name "Damascus," and that the Plaintiff cannot approbate and reprobate, citing Er Ngee (P) & Ors v Lim Choon Hiok (P) & Ors [2017] MLJU 2398. [32] Having considered the Plaintiff's submissions in their entirety and in context, I am not persuaded that this passage constitutes the fatal admission the Defendant claims. Read in context, the Plaintiff's position is nuanced: it does not claim exclusive monopoly over the generic word "Damascus" standing alone, but it does claim protection over its goodwill as manifested in its overall commercial identity which encompasses the name in combination with its trade dress, interior design, visual presentation, and branding. The Plaintiff's case, properly understood, is that the Defendant has not S/N W96j45a8jkKqmoABVy1nvA merely used the word "Damascus" but has embarked on a deliberate and calculated strategy to replicate the Plaintiff's entire business identity. These are not inconsistent positions. A party may concede that a word is not exclusively theirs while maintaining that the combination of that word with a copied trade dress and interior design amounts to passing off. The principle against approbating and reprobating does not apply where the positions taken are not truly contradictory. Damage [33] The Plaintiff has pleaded and deposed that it has suffered and/or is likely to suffer damage to its goodwill and reputation, loss of sales and customer base, and dilution of the distinctiveness of its brand if the Defendant is permitted to commence its business under "Damascus Delight" with a replicated interior design. At this interlocutory stage, the question is not whether damage has been conclusively proven but whether there is a serious issue to be tried. I am satisfied that there is. [34] Accordingly, on the first limb, I find that the Plaintiff has established a bona fide serious issue to be tried in respect of all three elements of the tort of passing off. F. SECOND LIMB: WHETHER DAMAGES WOULD BE AN ADEQUATE REMEDY [35] The Defendant submits that damages would be an adequate remedy for the Plaintiff, pointing to the fact that the Plaintiff itself S/N W96j45a8jkKqmoABVy1nvA seeks damages as a relief in its Statement of Claim. The Defendant argues that this prayer demonstrates that monetary compensation is both available and adequate, and undermines the claim of irreparable harm. [36] I do not accept this argument. It is commonplace, and indeed prudent, for a plaintiff in a passing off action to plead damages as an alternative or additional relief to injunctive relief. The inclusion of a prayer for damages does not, and cannot, be taken as an admission that damages are adequate. If such a principle were accepted, no litigant who pleaded damages could ever obtain an injunction. The acceptance of this proposition would fundamentally undermine the equitable jurisdiction of the Court. [37] The nature of the harm alleged here which includes damage to goodwill, reputation, and brand identity is inherently intangible and difficult to quantify in monetary terms. Goodwill, once diluted or damaged by misrepresentation, is exceedingly difficult to restore. As Lord Diplock observed in American Cyanamid Co v Ethicon Ltd [1975] AC 396, the inadequacy of damages is often demonstrated where the harm is to a party's trading reputation and goodwill, which by its nature is not susceptible to precise monetary calculation. [38] The Plaintiff has operated under the name "Damascus" for seven years and has built up substantial goodwill. If the Defendant is permitted to operate under a confusingly similar name and with a replicated trade dress, the resulting confusion, diversion of customers, and association of the Defendant's quality of service with the Plaintiff's reputation would cause harm that cannot be S/N W96j45a8jkKqmoABVy1nvA adequately compensated by a monetary award at trial. The damage to goodwill would be ongoing and cumulative with each day of the Defendant's operation. [39] I am therefore satisfied that damages would not be an adequate remedy for the Plaintiff if the injunction were refused and the Plaintiff were ultimately to succeed at trial. G. THIRD LIMB: THE BALANCE OF CONVENIENCE [40] I now turn to the balance of convenience, which I regard as tilting decisively in favour of granting the injunction. [41] A critical factor in the balance of convenience is the status quo. As at the date of hearing, the Defendant has not yet commenced business operations under the name "Damascus Delight." The premises remain under renovation. No trade has been conducted, no customers have been served, and no revenue has been generated under the impugned name. The Defendant's business under this name is, in every sense, prospective rather than actual. [42] The grant of the interim injunction would restrain the Defendant from using the name "Damascus" or "Damascus Delight" pending trial. In practical terms, this would mean that the Defendant would not be able to launch a business it has not yet launched. While this may cause some inconvenience and delay to the Defendant, it does not deprive the Defendant of an existing and ongoing business. The Defendant remains free to operate under its established brand "Aroi Thai Kitchen" or under any other name that does not give rise to the S/N W96j45a8jkKqmoABVy1nvA complaint of passing off. Indeed, the Defendant's own affidavit acknowledges that it was still considering alternative names for the premises, including "Damascus Palace Restaurant", demonstrating a degree of flexibility in its naming plans. [43] Conversely, if the injunction is refused and the Defendant is permitted to commence operations under "Damascus Delight" with a trade dress and interior design replicating that of the Plaintiff, the Plaintiff would suffer immediate and ongoing damage to its goodwill and brand identity. Customer confusion of which there is already evidence would intensify. The damage to the Plaintiff's reputation and distinctiveness would be progressive and difficult to undo, even if the Plaintiff ultimately succeeds at trial. [44] I am also mindful of the Defendant's contention that the word "Damascus" is widely used by other businesses. However, none of the other businesses listed by the Defendant have been shown to have replicated the Plaintiff's trade dress, interior design, and overall commercial identity. The present case is distinguishable on its facts because the Plaintiff's complaint goes beyond the mere use of a name as it concerns a deliberate and comprehensive imitation of the Plaintiff's business identity. [45] The Plaintiff's undertaking as to damages, implicit in seeking equitable relief, provides a further safeguard to the Defendant. Should the Defendant ultimately succeed at trial, it would be compensated for any loss occasioned by the injunction. S/N W96j45a8jkKqmoABVy1nvA [46] Taking all these factors into account, I find that the balance of convenience overwhelmingly favours the grant of the interim injunction. The status quo, properly understood, is one in which the Defendant has not yet commenced the impugned business. Preserving that status quo pending trial serves the interests of justice and protects the Plaintiff's established goodwill from potentially irreversible harm. H. THE DEFENDANT'S REMAINING ARGUMENTS Genericness of the name "Damascus" [47] The Defendant has devoted considerable submissions to the argument that "Damascus" is a generic geographical name referring to the capital city of the Syrian Arab Republic, and that numerous businesses across Malaysia use the name. A list of approximately thirty such businesses was produced. [48] I acknowledge that "Damascus" is indeed a geographical name and that it is used by other businesses. However, this argument does not dispose of the Plaintiff's claim. In the law of passing off, even a descriptive or geographical word may acquire a secondary meaning through long and continuous use, becoming associated in the minds of the public with a particular trader. As Lord Diplock stated in Erven Warnink BV v J Townend & Sons (Hull) Ltd [1979] AC 731 (the "Advocaat" case), the tort of passing off protects against the misappropriation of goodwill, regardless of whether the name in question is descriptive. S/N W96j45a8jkKqmoABVy1nvA [49] Whether the Plaintiff has in fact acquired such secondary meaning and goodwill in the name "Damascus" as used in its business is a matter for trial. At this interlocutory stage, the evidence of seven years of continuous use, substantial social media following, and customer recognition is sufficient to raise a serious question. Moreover, as I have noted, the Plaintiff's case is not confined to the word alone but extends to the combination of the name with the trade dress, interior design, and overall commercial identity. Interior design — prematurity [50] The Defendant submits that any claim based on interior design is premature because the Defendant's premises remain under renovation and no completed design has been unveiled to the public. The Defendant argues that a full comparison of both premises would be required before such a claim can be advanced. [51] I do not accept that the claim is premature. The very purpose of an interim injunction is to prevent harm before it crystallises. The evidence before me particularly the contractor's affidavit, the WhatsApp instructions, and the comparison photographs of the premises even in their renovation state demonstrates a clear intention and course of action by the Defendant to replicate the Plaintiff's interior design. Waiting until the renovation is complete and the business commences would defeat the purpose of interim relief. As Lord Diplock observed in American Cyanamid, the object of an interlocutory injunction is to protect the plaintiff's position pending trial. If the Court were to wait until the passing off was S/N W96j45a8jkKqmoABVy1nvA complete before intervening, the damage would already have been done. Cause of action [52] The Defendant submitted that the Plaintiff has no cause of action to commence the action. I find this submission to be without merit. The Statement of Claim pleads all three elements of the tort of passing off — goodwill, misrepresentation, and damage. The Plaintiff's evidence supports these pleadings. The existence of a cause of action is clear, and whether the Plaintiff will ultimately succeed is a matter for trial. I. CONCLUSION AND ORDERS [53] For all the reasons set out above, I am satisfied that: