Poesy Liang @ Sarina Liang v Aeon Co (M) Bhd (WA-22IP-81-12/2023)

AEON CO (M) BHD (No. Syarikat: 198401014370 / 126926-H)

AEON BIG (M) SDN BHD (No. Syarikat: 199201011156 / 242659-T) … DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT A. Introduction [1] The plaintiff filed this action against the defendants for breach of licensing agreements and copyright infringement. The defendants in turn S/N K7C2t5oeX0ulhMXb7inN2w filed a counterclaim against the plaintiff for breach of the same licensing agreements, and for defamation arising from statements made by the plaintiff on her Facebook accounts. [2] After a full trial, the court dismissed the plaintiff’s claim and allowed the defendants’ counterclaim. These are the full grounds of the court’s decision. B. Background Facts [3] The plaintiff is a sole proprietor trading under the name and style of “Poesy Art”. [4] The 1st and 2nd defendants are part of the AEON group of companies in Malaysia (“AEON Group”). The 1st defendant operates a chain of superstores and shopping centres selling a broad range of goods, including clothing, food, household goods and other merchandise. The stores operated by the 1st defendant are AEON Malls, AEON Stores, AEON MaxValu, AEON Wellness, DAISO and Komai-So. The 2nd defendant carries on the business of general retail through hypermarkets. [5] In September 2022, the parties agreed to collaborate on the AEON 2023 Chinese New Year campaign (“AEON 2023 CNY Campaign”), with the plaintiff’s artworks being used for the campaign. For this purpose, the following agreements were executed: a. A licensing agreement dated 26 September 2022 (“First Licensing Agreement”); S/N K7C2t5oeX0ulhMXb7inN2w b. A licensing agreement dated 9 November 2022 (“Second Licensing Agreement”); and c. A licensing agreement dated 14 December 2022 (“Third Licensing Agreement”). The First Licensing Agreement, the Second Licensing Agreement and the Third Licensing Agreement are collectively referred to as the “Licensing Agreements”. [6] The material terms and conditions of the Licensing Agreements are as follows: a. The descriptions of the artworks to be used for the AEON 2023 CNY Campaign are as set out in the First Licensing Agreement and the Second Licensing Agreement; b. The fees to be paid to the plaintiff are: i. RM20,000 under the First Licensing Agreement; ii. An additional RM3,000, under the Second Licensing Agreement; and iii. A further RM3,000, under the Third Licensing Agreement; and S/N K7C2t5oeX0ulhMXb7inN2w c. In respect of the copyright in the artworks, the Licensing Agreements provide as follows: “All copyright and intellectual property rights in the artwork vests with and remains the property of the artist, Poesy Liang” [7]

sufficient effort has been expended to make the work original in character; and

the work has been written down, recorded or otherwise reduced to material form.” (emphasis added) [15] In addition to satisfying section 7, a work must also meet the following requirements under section 10 of the CA 1987 before it qualifies for copyright protection: a. The author of the work must be a “qualified person” (section 10(1)). A “qualified person” is defined in section 3 of the CA 1987 to include a person who is a citizen of Malaysia; and b. The work must be first published in Malaysia (section 10(2)(a)). [16] Taking the above provisions into account, I first considered whether the following requirements for copyright protection had been met in respect of the artworks used for the AEON 2023 CNY Campaign: a. The artworks are eligible for copyright protection, in that: i. The artworks are artistic works (section 7(1)(c) of the CA 1987); ii. The plaintiff has expended sufficient skill, labour and effort to make the artworks original in character (section 7(3)(a) of the CA 1987); and S/N K7C2t5oeX0ulhMXb7inN2w iii. The artworks have been recorded or otherwise reduced to material form (section 7(3)(b) of the CA 1987); and b. The artworks qualify for copyright protection, in that: i. The plaintiff is a “qualified person” (section 10(1) of the CA 1987); and ii. The artworks were first published in Malaysia (section 10(2)(a) of the CA 1987). [17] I also considered the defendants’ argument that the statutory declaration affirmed by the plaintiff on 26 February 2025 (“SD”) is defective. Eligibility for copyright protection: The artworks are artistic works (section 7(1)(c) of the CA 1987) [18] The artworks produced for the AEON 2023 CNY Campaign over which the plaintiff is claiming copyright protection, are contained in the following exhibits in the SD: S/N K7C2t5oeX0ulhMXb7inN2w a. Exhibit A, sketches of the “Running Rabbit”: (collectively, the “Running Rabbit Sketches”); and S/N K7C2t5oeX0ulhMXb7inN2w b. Exhibit B, a stylised calligraphy of the Mandarin translation of the word “rabbit”: (“Running Rabbit Calligraphy Art”). The Running Rabbit Sketches and the Running Rabbit Calligraphy Art are collectively referred to as the “Running Rabbit Artworks”. [19] It is not in dispute that the Running Rabbit Artworks fall within the meaning of “artistic works” eligible for copyright protection under section 7(1)(c) of the CA 1987. Eligibility for copyright protection: The plaintiff has expended sufficient skill, labour and effort to make the Running Rabbit Artworks original in character (section 7(3)(a) of the CA 1987) [20] The requirement of originality under section 7(3)(a) was considered in Megnaway Enterprise Sdn Bhd v Soon Lian Hock (pemilik tunggal "Performance Audio & Car Accessories Enterprise) [2009] MLJU 142. The High Court relied on the following authorities, and found that copyright subsisted in favour of the plaintiff: S/N K7C2t5oeX0ulhMXb7inN2w “[22] Copinger and Skone James on Copyright [1991] para 3-32 p 60 explains the degree of independent skill or labour required, as follows: Degree of independent skill or labour required. It is clear that the standard of originality required by the Copyright Acts is a low one, but it is almost impossible to define in any precise terms the amount of knowledge, labour, judgment or literary skill or taste which the author of a work must bestow on its composition in order for it to acquire copyright. It is here that the real difficulty lies. There is no guiding principle as to the quantum of skill or judgment required. Simplicity, as such, is not enough to prevent copyright subsisting unless extreme, such as a straight line, or a circle. In the absence of clear guidance on the question, all that is left is to examine the decisions on the point as indicative of the degree of skill and labour which the courts have considered requisite in various sets of circumstances. [23] Decisions of the courts which have provided the sources of illuminations include Re AUVI Trademark; Auvi Pte Ltd v Seah Siew Tee & Anor [1992] 1 SLR 639 at P 648. There, Chao Hick Tin J of the Singapore High Court, in deciding whether the AUVI logo (which contains nothing more than just embellishment of four ordinary letters of the alphabet) constituted an artistic work and thus enjoyed copyright protection under the relevant Act in force in Singapore, said: S/N K7C2t5oeX0ulhMXb7inN2w The law on this is clear. Originality in this regard does not mean novelty or uniqueness; nor does it necessarily involve inventiveness. All that needs to be shown is that the author created it and has not copied it from another, and that he has expended towards its creation a substantial amount of skill or labour. What will be the exact amount of skill, labour or judgment required cannot be defined in precise terms: see Lord Atkinson in Macmillan & Co Ltd v Cooper (K & J) (1923) 40 TRL 186 at p 190. The cases would appear to show that simplicity per se does not prevent a work from acquiring copyright; see British Northrop Ltd v Texteam Blackburn Ltd [1974] RPC 57 and KARO STEP Trade Mark [1977] RPC 255. Even drawings of things in common use such as engines and gear boxes are copyrightable: see Nichols

Advanced Vehicle Systems Inc v Rees [1979] RPC I think this statement of Megarry J in British Norlthrop Ltd at p 68 says it all: ‘A single straight line drawn with the aid of a ruler would not seem to me a promising subject for copyright. But apart from cases of such barren and naked simplicity as that, I should be slow to exclude drawings from copyright on the mere score of simplicity. I do not think that the mere fact that a drawing is of an elementary and common place article makes it too simple to be the subject of copyright. S/N K7C2t5oeX0ulhMXb7inN2w [24] In Malaysia, further inspiration is available in the judgment of Siti Norma Yaacob J (later CJ(M)) in Peko Wallsend Operations Ltd & Ors v Linatex Process Rubber Bhd and another action [1993] 1 MLJ 225 (HC), which was affirmed by the Supreme Court: see [1994] 3 MLJ lxx. Her Ladyship held that:

engineering drawings are included in the definition of artistic work under s 3 and qualify for protection under the copyright law; and

under s 3, copyright not only vests in the engineering drawings (two-dimensional) as ‘artistic works’ but has been extended and enlarged to cover the finished products (three dimensional) as well and which have been manufactured from the drawings.” (emphasis added) [21] The authorities in Megnaway Enterprise (supra) establish that originality does not require novelty. Rather, the plaintiff must show that the work originated from her own skill, labour and judgment, and was not copied from another source. [22] I find that the plaintiff has shown this, based on the testimony in her witness statement (“WS-PW1(A)”). In paragraphs 7 and 8 of WS-PW1(A), the plaintiff testified that: S/N K7C2t5oeX0ulhMXb7inN2w a. She created and adapted the Running Rabbit Artworks, from her signature artworks featuring the “Running Rabbit”; b. The “Running Rabbit” has been her recurring art theme since the year 2000; c. She created and adapted the Running Rabbit Calligraphy Art from a stylised Mandarin translation of the word “rabbit”, which she created on stone in 2017; and d. She took roughly half a day to create the Running Rabbit Artworks. From the above testimony, I find that the requirement under section 7(3)(a) of the CA 1987 has been met. Eligibility for copyright protection: The artworks have been recorded or otherwise reduced to material form (section 7(3)(b) of the CA 1987) [23] Section 7(3)(b) further requires the artworks to be written down, recorded or reduced to a material form. [24] The definition of “material form” is provided in section 3 of the CA 1987, as follows: “… in relation to a work or a derivative work, includes any form (whether visible or not) of storage from which the work or S/N K7C2t5oeX0ulhMXb7inN2w derivative work, or a substantial part of the work or derivative work can be reproduced;” [25] It cannot be disputed that the Running Rabbit Artworks are in the form of the Running Rabbit Sketches and the Running Rabbit Calligraphy Art. They have been recorded and reduced to material form, as they exist in a form capable of being reproduced. [26] As such, I am of the view that the requirement of section 7(3)(b) of the CA 1987 has been met. Qualification for copyright protection (section 10 of the CA 1987) [27] Section 10 of the CA 1987 provides that for works eligible for copyright to qualify for copyright protection: a. The author of the works must be a “qualified person” (section 10(1)). A “qualified person” is defined in section 3 of the CA 1987 to include a person who is a citizen of Malaysia; and b. The works must be first published in Malaysia (section 10(2)(a)). [28] It is not in dispute that the plaintiff is a Malaysian citizen, and that the Running Rabbit Artworks were first published in Malaysia. [29] As such, the works qualify for copyright protection, pursuant to section 10 of the CA 1987. S/N K7C2t5oeX0ulhMXb7inN2w The status of the SD [30] As a final point, I considered the argument raised by the defendants on the status of the SD filed by the plaintiff. The plaintiff sought to admit the SD pursuant to section 42 of the CA 1987, as prima facie evidence of her ownership of the Running Rabbit Artworks. However, the defendants argued that the SD is defective, in view of the following: a. The exhibits attached to the SD were not stamped; b. There was a delay in the affirmation of the SD; and c. The Running Rabbit Artworks exhibited in the SD are different from the artworks described in the Licensing Agreements. [31] In respect of the first argument, the defendants claimed that the exhibits attached to the SD are inadmissible as they were unstamped by the commissioner for oaths. The defendants argued that this casts doubt on the authenticity and reliability of the exhibits. The defendants referred to Lee Chye Yen (t/a ‘Ebiz Solution Network’) v EoneNet Com Sdn Bhd [2014] 4 MLJ 595, where the Court of Appeal disregarded a statutory declaration, as there was no indication in the statutory declaration that the copy of the works attached are a true copy. However, I find the present case to be distinguishable, as there is no dispute before this court that the Running Rabbit Artworks in the SD are artworks used for the AEON 2023 CNY Campaign. S/N K7C2t5oeX0ulhMXb7inN2w [32] Further, any defect in the SD can be supplemented by the oral evidence of the plaintiff (see Dura-Mine Sdn Bhd v Elster Metering Ltd & Anor [2015] 3 MLJ 1). In the present case, to support the SD as prima facie evidence of her creation of the Running Rabbit Artworks, the plaintiff further testified on how she created the artworks, and how the artworks were derived from her earlier works. [33] Second, the defendants argued that there was a delay in the affirmation of the SD. The plaintiff claimed copyright subsisted in the Running Rabbit Artworks on 19 September 2022, but the SD was only affirmed on 26 February 2025. According to the defendants, the plaintiff’s delay in affirming the SD undermines the probative value of the SD, as the plaintiff is seeking to retroactively assert ownership in the copyright of the Running Rabbit Artworks. [34] I am unable to agree with the defendants. In Radion Trading Sdn Bhd v Sin Besteam Equipment Sdn Bhd & Ors [2010] 9 MLJ 648, the court held as follows: “[45] On this issue, I cannot accept the argument of learned counsel for the defendants that the statutory declaration is a fabrication and concoction. In my view, all the prerequisites laid down in the relevant provision have been fulfilled. It is untenable to argue that just because the statutory declaration was made 14 years later, therefore it must be a fabrication and concoction. The reason for this is that the Act does not bar the admission of the statutory declaration, which is affirmed subsequent to the creation of the copyrighted works. There is merit in the argument of learned counsel for the plaintiff to the S/N K7C2t5oeX0ulhMXb7inN2w effect that there is no legal requirement that the statutory declaration should be made contemporaneously with the creation of the works.” (emphasis added) [35] Thus, the mere fact that the SD was filed a few years after the plaintiff’s claim of copyright subsistence over the Running Rabbit Artworks does not render the SD inadmissible. [36] Third, the defendants went on to argue that the Running Rabbit Artworks exhibited in the SD are different from the artworks described in the First Licensing Agreement and the Second Licensing Agreement, and as such, the plaintiff’s claim that she owned the copyright in the Running Rabbit Artworks is unsustainable. [37] The First Licensing Agreement and the Second Licensing Agreement refer to the following descriptions of the artworks to be used for the AEON 2023 CNY Campaign: a. In the First Licensing Agreement: “Running Rabbit - 2 postures - 6 sets of eyes - 3 nose Calligraphy - 兔” S/N K7C2t5oeX0ulhMXb7inN2w b. In the Second Licensing Agreement: “Calligraphy - 兔” [38] The Running Rabbit Artworks, in contrast, are sketches of the “Running Rabbit” and a stylised calligraphy of the Mandarin translation of the word rabbit. Both are as set out in paragraph [18] above. [39] The defendants argued that the Running Rabbit Artworks were not annexed to the Licensing Agreements, and the descriptions in the Licensing Agreements are not consistent with the Running Rabbit Artworks. The Licensing Agreements refer to a “Running Rabbit” with two postures, six sets of eyes and three noses, and a calligraphy of the Mandarin character “兔”. According to the defendants, these descriptions are different from the Running Rabbit Artworks – which the plaintiff is claiming copyright ownership over – and this difference is fatal to the plaintiff’s claim. [40] The defendants further claimed that the Running Rabbit Artworks were not created by the plaintiff, but were instead created by the defendants using the discrete elements described in the First Licensing Agreement and the Second Licensing Agreement. [41] I note that the Running Rabbit Artworks contain the Running Rabbit Sketches, depicting two rabbit forms, two sets of eyes and two sets of noses, and the Running Rabbit Calligraphy Art. These do not exactly match the description of the artworks to be used for the AEON 2023 CNY S/N K7C2t5oeX0ulhMXb7inN2w Campaign, as set out in the First Licensing Agreement and the Second Licensing Agreement. [42] Although the descriptions contained in the Licensing Agreements do not correspond exactly with the Running Rabbit Artworks exhibited in the SD, I do not regard this discrepancy as material. The Licensing Agreements merely describe the artwork to be supplied for the campaign. They do not purport to reproduce or exhaustively define the final artistic expression. More importantly, the defendants accepted and used the Running Rabbit Artworks throughout the AEON 2023 CNY Campaign without objection. There is no evidence that, at any material time, the defendants asserted that the artworks supplied by the plaintiff fell outside the scope of the Licensing Agreements. [43] As such, I find that the Running Rabbit Artworks exhibited in the SD are artworks produced pursuant to the Licensing Agreements and for the AEON 2023 CNY Campaign. [44] Premised on my rejection of the defendants’ arguments as set out above, I admitted the SD pursuant to section 42 of the CA 1987, as prima facie evidence of the plaintiff’s ownership of the Running Rabbit Artworks. [45] With the admission of the SD, I then relied on DNC Asiatic Holdings Sdn Bhd v Honda Giken Kogyo Kabushiki Kaisha [2020] 1 CLJ 799, regarding the effect of the admission of a statutory declaration under section 42 of the CA 1987. The Court of Appeal held that: “[35] … s. 42 of the CA is a statutory mechanism specifically provided to prove authorship of the impugned S/N K7C2t5oeX0ulhMXb7inN2w works in question. The Rock Records (M) Sdn Bhd v. Audio One Entertainment Sdn Bhd [2005] 1 CLJ 200 case ("the Rock Records case") is an authority for the proposition that once a prima facie case has been made out by the affidavit or the SD, the burden can only be discharged by the appellant by way of leading factual evidence to doubt the subsistence of copyright in the respondent.” (emphasis added) [46] Since the SD has been admitted as prima facie evidence of the plaintiff’s ownership of the copyright in the Running Rabbit Artworks, the burden is now on the defendants to disprove such ownership by way of factual evidence. The defendants have not provided any evidence to raise any doubt on the plaintiff’s ownership of the copyright in the artworks. Instead, they merely alleged that their employees were involved jointly in creating the artworks. The said employees were however not identified; nor were they called to testify regarding their involvement. [47] I therefore find that the defendants have failed to adduce sufficient factual evidence to displace the prima facie presumption of the plaintiff's ownership of the Running Rabbit Artworks. Summary [48] From the considerations set out above, I find that the plaintiff has successfully established: S/N K7C2t5oeX0ulhMXb7inN2w a. The Running Rabbit Artworks’ eligibility for copyright protection, in view of the following: i. The artworks are artistic works; ii. The plaintiff has expended sufficient skill, labour and effort to make the artworks original in character; and iii. The artworks have been recorded or otherwise reduced to material form; and b. The Running Rabbit’s Artworks’ qualification for copyright protection, as the plaintiff is a Malaysian citizen and the artworks were first published in Malaysia. [49] I also rejected the defendants’ arguments on the defectiveness of the SD, and admitted the SD pursuant to section 42 of the CA 1987 as prima facie evidence of the plaintiff’s ownership of the Running Rabbit Artworks. Further, I found that the defendants have failed to disprove the plaintiff’s prima facie ownership in the Running Rabbit Artworks. [50] From the above, it therefore follows that issue 1 must be answered in the affirmative. Copyright subsists in the Running Rabbit Artworks, and the plaintiff is the owner of the copyright. S/N K7C2t5oeX0ulhMXb7inN2w E. Issue 2 (Plaintiff’s Claim): Whether The Licensing Agreements Apply Only To The 1st Defendant [51] The plaintiff argued that the Licensing Agreements were issued only to the 1st defendant, and were therefore intended to apply only to the 1st defendant. In this regard, the plaintiff referred to the Licensing Agreements, which were addressed to Low Ngai Yuen (for the First Licensing Agreement) and Nikki Lee Chin Foong (“Nikki Lee”) (for the Second Licensing Agreement and the Third Licensing Agreement). It is not in dispute that these individuals were at the material time the employees of the 1st defendant. Further, the Licensing Agreements referred to the 1st defendant, and contained the address of the 1st defendant. [52] Although the Licensing Agreements were addressed to the 1st defendant, I am unable to agree with the plaintiff’s contention that they were intended to apply only to the 1st defendant. In my judgment, the Licensing Agreements must be construed objectively, having regard not only to their express terms but also to the commercial context in which they were entered into, and to the parties’ conduct throughout the collaboration. The commercial reality was that the parties were collaborating on the AEON 2023 CNY Campaign, a large-scale promotional campaign intended to be implemented across the AEON Group through its various retail formats, business divisions and participating entities. It would therefore be artificial to construe the Licensing Agreements as confining the use of the Running Rabbit Artworks solely to the 1st defendant, when the contemporaneous documents and the parties’ conduct consistently demonstrated a common S/N K7C2t5oeX0ulhMXb7inN2w understanding that the campaign extended beyond a single corporate entity. Two matters, in particular, support this conclusion. [53] First, I note that before executing the Licensing Agreements, the plaintiff signed the “Code of Ethics for Business Associates” and “Know Your Client” forms for both the 1st and 2nd defendants. In her oral testimony, the plaintiff confirmed that she signed the documents voluntarily and did not raise any objection to the inclusion of both the 1st and 2nd defendants in the documents. [54] Second, the contemporaneous evidence clearly shows that the AEON 2023 CNY Campaign was carried out across the entire AEON Group, which included the 2nd defendant, and malls and stores operated by the 1st defendant, including AEON Malls, AEON Stores, AEON MaxValu, AEON Wellness, DAISO and Komai-So. The extent and reach of the campaign were acknowledged by the plaintiff, as demonstrated by the following: a. In the Licensing Agreements, the collaboration was referred to as “Project AEON x Poesy Rabbit” and “AEON CNY Heating Mug x Poesy Rabbit”, and the Running Rabbit Artworks are stated to be used for items for the “Aeon 2023 CNY campaign”. The Licensing Agreements do not contain any restriction for the Running Rabbit Artworks to be used only by the 1st defendant. Significantly, the Licensing Agreements were prepared by the plaintiff; S/N K7C2t5oeX0ulhMXb7inN2w b. Angpow packet designs were sent to the plaintiff for approval. These angpows contained the trademarks of both defendants and other brands in the AEON Group. These designs were approved by the plaintiff; and c. In the plaintiff’s own social media promotions for the AEON 2023 CNY Campaign, she tagged not only the 1st defendant but also the 2nd defendant. [55] From the above, I find that the plaintiff’s conduct demonstrates her knowledge and acknowledgment that the 2nd defendant was included in the AEON 2023 CNY Campaign. By signing documents identifying both defendants, approving items bearing both defendants’ brands and publicly promoting the campaign through social media, the plaintiff objectively demonstrated that she understood both defendants to be participants in the campaign. [56] The plaintiff's subsequent assertion that the Licensing Agreements were intended to benefit only the 1st defendant is inconsistent with the contemporaneous documents and her own conduct during the collaboration. At no time before the present dispute did the plaintiff object to the involvement of the 2nd defendant or suggest that the AEON 2023 CNY Campaign should be confined only to the 1st defendant. I therefore placed considerably greater weight on the contemporaneous documentary evidence than on the plaintiff's subsequent interpretation advanced during these proceedings. S/N K7C2t5oeX0ulhMXb7inN2w [57] Thus, issue 2 is answered in the negative, namely that the Licensing Agreements do not apply only to the 1st defendant. Rather, they apply to both the 1st and 2nd defendants. F. Issue 3 (Plaintiff’s Claim): Whether The Defendants Breached The Licensing Agreements Or Infringed The Plaintiff’s Copyright In The Artworks [58] The allegations of breach of the Licensing Agreements and infringement of the plaintiff’s copyright can be conveniently addressed together, as the answer to this issue ultimately turns on whether the plaintiff had given her approvals for the defendants to use the Running Rabbit Artworks. The plaintiff’s contention is that the defendants had used the Running Rabbit Artworks beyond the terms agreed by the parties. This would be a breach of the Licensing Agreements and an infringement of copyright under section 36(1) of the CA 1987. [59] The terms of the use of the Running Rabbit Artworks are set out in the Licensing Agreements. The First Licensing Agreement states: “2. The provided assets will be used for key campaign visuals, angpows, tissue boxes, and reusable shopping totes. Other applications shall be considered with documented permission from the artist.

The CNY marketing campaign must credit the artist collaboration with Poesy Liang [Chinese characters] or Poesy [Chinese characters] where applicable, S/N K7C2t5oeX0ulhMXb7inN2w incorporate the origin story of the Running Rabbit by the artist.

The provided assets will appear exclusively on Aeon 2023 CNY campaign related items only.

The provided assets must always appear with mention of the artist, not on its own.

Final design should be cleared with the artist before going to print.” [60] Paragraphs 3, 5 and 6 are also contained in the Second Licensing Agreement and the Third Licensing Agreement. The Second Licensing Agreement and the Third Licensing Agreement were entered into specifically for the use of the Running Rabbit Artworks on heating mugs. [61] The plaintiff referred to paragraph 2 of the First Licensing Agreement which provides that the Running Rabbit Artworks will be used for: a. Key campaign visuals; b. Angpows; c. Tissue boxes; and d. Reusable shopping totes. S/N K7C2t5oeX0ulhMXb7inN2w [62] Paragraph 2 also states that other applications of the Running Rabbit Artworks shall be considered with documented permission from the artist. [63] It is the plaintiff’s contention that the Running Rabbit Artworks were used for items outside the scope of paragraph 2 of the First Licensing Agreement, and without her documented permission. [64] After considering the terms set out in the Licensing Agreements and the conduct of the parties, four matters led me to reject the plaintiff’s contention. [65] First, in addition to specific items, namely angpows, tissue boxes and reusable shopping totes, paragraph 2 of the First Licensing Agreement also refers to the use of the Running Rabbit Artworks for “key campaign visuals”. In construing the expression “key campaign visuals”, the court must adopt an objective approach and consider the words used in their commercial context. The Licensing Agreements were entered into for the AEON 2023 CNY Campaign, a large-scale promotional campaign intended to be rolled out across multiple AEON malls, retail outlets and marketing platforms. A reasonable business person reading the Licensing Agreements against that commercial background would understand the expression “key campaign visuals” to encompass the principal visual materials used to promote and implement the campaign. Such materials would naturally include mall decorations, promotional displays, banners, posters, floor and wall stickers, digital promotional materials and other visual elements forming part of the overall campaign presentation. S/N K7C2t5oeX0ulhMXb7inN2w [66] It was the plaintiff who drafted the Licensing Agreements, and had she intended to restrict the use of the Running Rabbit Artworks to only the specific items expressly identified in paragraph 2, it would have been a simple matter to include clear words of limitation. Instead, the plaintiff chose to employ the broader expression “key campaign visuals”, which must be given its ordinary commercial meaning. [67] It therefore follows that the reasonable commercial expectation would be for “key campaign visuals” to include mall decorations, promotional displays, banners, posters, floor and wall stickers, digital promotional materials and other visual elements forming part of the AEON 2023 CNY Campaign. [68] The following WhatsApp messages exchanged between the plaintiff (using the WhatsApp display name “Pink Yakuza”) and Nikki Lee on 8 and 9 November 2022 indicate that the plaintiff was aware of the use of the Running Rabbit Artworks for mall decorations: “[11/8/22, 11:43:17 AM] Nikki Lee: Hi Poesy. [11/8/22, 11:43:55 AM] Nikki Lee: This is Nikki Lee from AEON MALL. We e-meet last week on the CNY set up at mall’s court. [11/8/22, 11:44:39 AM] Nikki Lee: Just thinking if we can have a meet again tomorrow so that i share with you the revised visual? [11/8/22, 12:09:58 PM] Pink Yakuza: On Zoom ya? S/N K7C2t5oeX0ulhMXb7inN2w [11/8/22, 12:10:11 PM] Pink Yakuza: 11am [11/8/22, 12:27:46 PM] Nikki Lee: Yupe. [11/8/22, 12:28:04 PM] Nikki Lee: Ok ü. Thanks.” (emphasis added) [69] Thus, the plaintiff cannot now contend that the use of the Running Rabbit Artworks for items other than angpows, tissue boxes and reusable shopping totes, as set out in paragraph 2 of the First Licensing Agreement is outside the scope of the agreement. I find that the term “key campaign visuals” is sufficiently wide to include promotional materials, mall decorations, in-store displays and posters for the AEON 2023 CNY Campaign, and that there are indications on the part of the plaintiff that she agreed to use the Running Rabbit Artworks for such “key campaign visuals”. [70] Second, it is clear that from the beginning of their commercial relationship, the parties had communicated by way of WhatsApp messages. These messages include confirmations provided by the plaintiff on the terms of the Licensing Agreements, and specific confirmations on the use of the Running Rabbit Artworks for the AEON 2023 CNY Campaign items, including “key campaign visuals” such as mall decorations, games, and activities conducted for the campaign. [71] The WhatsApp messages between the parties and the confirmations provided by the plaintiff on the use of the Running Rabbit Artworks constitute acknowledgments made in writing pursuant to section S/N K7C2t5oeX0ulhMXb7inN2w 8 of the Electronic Commerce Act 2006, as recognised by the Federal Court in Yam Kong Seng & Anor v Yee Weng Kai [2014] 4 MLJ 478. [72] Further, prior to the dispute between the parties, there was no objection by the plaintiff as to the manner of communication or confirmations between the parties via WhatsApp messages. The plaintiff’s conduct during the collaboration is inconsistent with her argument that the term “documented permission” in paragraph 2 of the First Licensing Agreement means that specific documentary sign-off is required. [73] Third, the plaintiff had conducted herself in a manner that indicated that she did not have any objection on the extent of the use of the Running Rabbit Artworks. In this regard, the plaintiff had demonstrated her support for the Running Rabbit Artworks being featured for the AEON 2023 CNY Campaign in the following ways: a. The plaintiff actively collaborated with the defendants in the development and release of the “Running Rabbit Challenge” game; b. From as early as 28 December 2022, the plaintiff uploaded photographs of mall decorations featuring the Running Rabbit Artworks to her social media platforms, including Facebook, Instagram, and Twitter; c. On 1 January 2023, the plaintiff attended a public relations event at AEON Mall Metro Prima, which was held specifically in connection with the AEON 2023 CNY Campaign, featuring the Running Rabbit Artworks; S/N K7C2t5oeX0ulhMXb7inN2w d. On 9 January 2023, the plaintiff uploaded photos of her attending the public relations event on her social media platforms. The plaintiff included the following caption for the photos: “Back in September, I licensed my #RunningRabbit and the 兔 calligraphy to the client to be used in their extensive CNY campaign.”; and e. The plaintiff published various posts on her social media platforms regarding her collaboration with the defendants, featuring various items with the Running Rabbit Artworks. [74] The actions and conduct of the plaintiff reflect her consent and acquiescence on the use of the Running Rabbit Artworks by the defendants. [75] Fourth, the claim by the plaintiff that the use of the Running Rabbit Artworks in other outlets or stores of the 1st defendant (namely AEON MaxValu, AEON Wellness and DAISO) extends beyond the scope of the Licensing Agreements cannot stand, as these are brands and stores operated by the 1st defendant. They are not entities that are separate from the 1st defendant. As such, these brands are entitled to use the Running Rabbit Artworks in accordance with the Licensing Agreements. [76] From the matters set out above, I find that there is sufficient evidence to prove that the defendants had acted in line with the terms of the Licensing Agreements, in producing items bearing the Running Rabbit S/N K7C2t5oeX0ulhMXb7inN2w Artworks for the AEON 2023 CNY Campaign. Certain items produced, namely tissue boxes, angpows, and heating mugs, were specifically identified in the Licensing Agreements, while other items such as mall decorations, interactive game, promotional videos, flyers, banners, posters, floor stickers, wall stickers, in-store displays and brochures were all “key campaign visuals” created as part of the AEON 2023 CNY Campaign. [77] The plaintiff’s failure to raise any objection to the use of the Running Rabbit Artworks for the AEON 2023 CNY Campaign while the campaign was ongoing, coupled with her conduct in showing approval and appreciation towards the campaign, supports the conclusion that on the balance of probabilities, she had agreed to the use of the artworks for the campaign. [78] It is also important to note that the plaintiff’s allegation that she did not consent to the use of the Running Rabbit Artworks for specific items, or for the AEON 2023 CNY Campaign generally, or for use by entities apart from the 1st defendant, was only raised at a later stage. This timing substantially undermines the credibility of the plaintiff’s contention. From available evidence, the allegation appears to have arisen when the plaintiff's continuous demands for increased licensing fees beyond those provided in the Licensing Agreements were not accepted by the 1st defendant. [79] Thus, I find that the defendants did not breach the Licensing Agreements. S/N K7C2t5oeX0ulhMXb7inN2w [80] With this finding, it follows that the defendants did not infringe the plaintiff’s copyright in the Running Rabbit Artworks. The act of copyright infringement is described in section 36(1) of the CA 1987, which states that: “(1) Copyright is infringed by any person who does, or causes any other person to do, without the licence of the owner of the copyright, an act the doing of which is controlled by copyright under this Act.” (emphasis added) [81] In this case, the defendants were licensed to use the Running Rabbit Artworks under the Licensing Agreements. I had found that the defendants had used the artworks in accordance with the Licensing Agreements. Since the defendants’ use fell within the scope of the licence granted under the Licensing Agreements, no breach of copyright could arise because the acts complained of were authorised by the plaintiff, the owner of the copyright in the artworks. It therefore follows that the defendants did not commit copyright infringement under section 36(1) of the CA 1987. [82] As such, issue 3 must be answered in the negative. The defendants neither breached the Licensing Agreements nor infringed the plaintiff’s copyright in the Running Rabbit Artworks. S/N K7C2t5oeX0ulhMXb7inN2w G. Issue 4 (Defendants’ Counterclaim): Whether The Plaintiff Breached The Licensing Agreements [83] The court’s finding that the defendants did not breach the Licensing Agreements necessarily means that the defendants had at all times used the Running Rabbit Artworks in accordance with the terms of the agreements. [84] However, from mid-January 2023, the plaintiff had issued letters of complaint and cease and desist letters, and demanded that the defendants dismantle the mall decorations and discontinue the use of the Running Rabbit Artworks for the AEON 2023 CNY Campaign. The defendants complied with the plaintiff’s demands and removed items used for the campaign which contained the Running Rabbit Artworks. [85] I find that the plaintiff’s conduct had prevented both defendants – the 1st defendant as a party to the Licensing Agreements and the 2nd defendant who was entitled to use the Running Rabbit Artworks pursuant to the Licensing Agreements – from using the Running Rabbit Artworks for the AEON 2023 CNY Campaign in accordance with their terms. [86] As such, issue 4 is answered in the affirmative. The plaintiff had breached the Licensing Agreements. H. Issue 5 (Defendants’ Counterclaim): Whether The Plaintiff Defamed The Defendants [87] The plaintiff has expressed dissatisfaction towards the defendants by publishing a series of statements on two Facebook S/N K7C2t5oeX0ulhMXb7inN2w accounts which she operated (“Facebook Accounts”). The defendants claimed that these statements are defamatory of the defendants. [88] To prove defamation, the defendants must show: a. That the statements complained of bear defamatory imputations; b. That the statements refer to or reflect upon the defendants’ reputation; and c. That the statements were published to a third party by the plaintiff (see Raub Australian Gold Mining Sdn Bhd v Hue Shieh Lee [2019] 3 CLJ 729). [89] It is not in dispute that the Facebook Accounts are operated and managed by the plaintiff. Through the Facebook Accounts, the plaintiff published several statements in the course of January and February 2023, which include the following: a. Published on 1 January 2023: “Aeon is a terrible client.” b. Published on 9 January 2023 and amended on 11 February 2023: i. “… I was surprised to find my assets all over their CNY campaign and mall decorations.”; S/N K7C2t5oeX0ulhMXb7inN2w ii. “I felt scammed to find the liberal use of my artworks without my design sign-off …” iii. “… Are they so devoid of ethics that they cannot be fair and pay me what is due?” c. Published on 19 January 2023: “If it is okay with you, I would just like to be compensated fairly for the use of my #RunningRabbit …” d. Published on 20 January 2023: “You know what abundance is? Abundance is not greedy. Abundance starts with generosity.. meanwhile we should try to practice kindness with those who is truly in need, so it's high time to run from toxic circles and unhealthy influences (this includes bad business with exploitative clients) so HUAT are you waiting for!???” e. Published on 20 January 2023: “P’ge Lee Pei Tjin everything has been dismantled. We sent them cease & desist letters to remove every use of the Running Rabbit that they did not pay for.” f. Published on 20 January 2023: “P’ge Lee Pei Tjin I wouldn't be doing this if they didn't keep pissing me off lah. Who likes to go to court.” (collectively, the “Facebook Postings”). S/N K7C2t5oeX0ulhMXb7inN2w [90] There is no dispute that the Facebook Postings were published on a platform that is accessible to third parties, namely the plaintiff’s followers and the public as a whole. [91] Further, the Facebook Postings either specifically mention the defendants, or contain clear references that can only be reasonably understood as pointing to the defendants. Even where the defendants are not directly named, the plaintiff referred to the Running Rabbit Artworks, which were associated with the defendants through the AEON 2023 CNY Campaign. In the circumstances, a reasonable reader familiar with the campaign would readily understand that such references were directed to the defendants. [92] I also find the words used in the Facebook Postings to be defamatory of the defendants. The test to determine whether words are defamatory is set out in Chok Foo Choo @ Chok Kee Lian v The China Press Bhd [1999] 1 MLJ 371, at page 374I: “In my judgment, the test which is to be applied lies in the question: do the words published in their natural and ordinary meaning impute to the plaintiff any dishonourable or discreditable conduct or motives or a lack of integrity on his part? If the question invites an affirmative response, then the words complained of are defamatory. (See JB Jeyaretnam v Goh Chok Tong [1985] 1 MLJ 334.) …” (emphasis added) S/N K7C2t5oeX0ulhMXb7inN2w [93] In the present case, the natural and ordinary meaning of the words in the Facebook Postings would convey the following imputations: a. That the defendants carried out fraudulent or unfair practices; b. That the defendants were dishonest; c. That the defendants were unethical; d. That the defendants did not make the payments promised to the plaintiff; and e. That the defendants exploited the plaintiff. [94] The plaintiff’s main challenges to the defendants’ claim for defamation are twofold. [95] First, the plaintiff claimed that the defendants failed to plead that the defamatory words have injuriously affected the defendants or their trading reputation. The plaintiff relied on Mak Khuin Weng v Melawangi Sdn Bhd [2016] 5 MLJ 314, where the Court of Appeal found that the action for defamation against the defendant could not be maintained, as the defamatory words reflected solely upon the plaintiff’s staff, and not upon the plaintiff itself. The defamatory remarks in that case were directed at the misconduct of the plaintiff’s staff, which the court found did not amount to an attack on the plaintiff’s reputation. In the present case, however, the plaintiff’s defamatory remarks by way of the Facebook S/N K7C2t5oeX0ulhMXb7inN2w Postings were expressly directed to the defendants, and were capable of injuring the defendants’ trading reputation and business integrity. [96] Second, the plaintiff contended that similar to the plaintiffs in Jeramas Sdn Bhd v Datuk Wong Sze Phin @ Jimmy Wong [2021] MLJU 2037, the defendants failed to plead or assign individual meanings to each of the statements claimed to be defamatory, and this is fatal to the defendants’ claim for defamation. I find no basis for the plaintiff’s contention. In Jeramas (supra), the plaintiffs failed to identify which specific words or passages in the press statement issued by the defendant were defamatory, and pleaded 19 meanings without linking them to the alleged defamatory paragraphs. There was therefore a lack of clarity and precision in the plaintiffs’ allegation that the press statement was defamatory. In the present case, I find the defendants had sufficiently pleaded the plaintiff’s statements in the Facebook Postings, and specified the words that were defamatory. [97] As such, I find that the plaintiff’s challenges to the defendants’ claim for defamation are without merit. [98] The plaintiff also relied on the defences of justification and fair comment. However, I find that the plaintiff failed to establish these defences. To rely on the defence of justification, the plaintiff must prove that the Facebook Postings are true, as the defence is founded on the truth of the statements (see Seema Elizabeth Isoy v Tan Sri David Chiu Tat-Cheong [2024] 4 MLJ 260). The truth of the statements has not been established by the plaintiffs. In respect of the defence of fair comment, the plaintiff must show that the Facebook Postings are a statement of opinion rather than a statement of fact (see Abdul Azeez bin Abdul Rahim v S/N K7C2t5oeX0ulhMXb7inN2w Lim Guan Eng [2023] 6 MLJ 600). In the present case, the Facebook Postings cannot be characterised as a statement of opinion. Instead, the statements refer directly or indirectly to the defendants, and contain factual assertions capable of lowering the defendants in the estimation of right-thinking members of society. As such, the plaintiff’s defence of fair comment must necessarily fail. [99] With the above findings, I find that the defendants have established the elements of defamation, and the defences raised by the plaintiff against the defendants’ claim for defamation are unsustainable. Accordingly, issue 5 is answered in the affirmative. The plaintiff defamed the defendants by way of the Facebook Postings.

[100] For the reasons set out above, the plaintiff’s claim in the amended statement of claim dated 26 March 2025 is dismissed. The defendants’ counterclaim in the amended defence and counterclaim dated 26 March 2025 is allowed, with damages to be assessed. The court ordered costs of RM50,000 to be paid by the plaintiff to the defendants. Dated 30 June 2026 ADLIN ABDUL MAJID Judge High Court of Malaya Kuala Lumpur S/N K7C2t5oeX0ulhMXb7inN2w Counsel: Plaintiff : Eric Toh (together with Elizabeth Goh) of Messrs. Robert Low & Ooi Defendants : R. Jayasingam (together with Dineswary Nadarajah) of Messrs. BH Lawrence & Co S/N K7C2t5oeX0ulhMXb7inN2w