S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte. Ltd (BA-22NCvC-509-12/2020)

breach of the Marketing and Operational Consulting Agreement dated 25.10.2018 (“MOCA” or “Agreement”) between the plaintiff and the defendants;

sabotage by the defendants by way of unlawful interference of the plaintiff’s trade and business at the Sky Star Hotel located at No. 58 Jalan 2 Bandar Baru Salak Tinggi, 43900 Sepang, Selangor (the “Hotel”);

breach of post-contractual obligations following the termination of the MOCA; and 08/01/2025 23:11:02 BA-22NCvC-509-12/2020 Kand. 159 S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 2

infringement of the plaintiff’s intellectual property rights over the registered trademark “Sky Star Hotel”. Material Facts [2] The plaintiff is a private limited company incorporated in Malaysia and is the owner of the Hotel. It carries on the business of providing boarding and lodging and service to its customers on a commercial basis at the Hotel. [3] The plaintiff is the owner of the registered trademark “Sky Star Hotel”. [4] The 1st defendant is company incorporated in Singapore. It owns and operates an online platform comprising of a website at www.oyorooms.com and a mobile application under the name and style of “OYO Rooms”, collectively referred to as “OYO Platform”. The OYO Platform is used to connect users with, and facilitates the reservation or booking of budget hotels / guesthouses in the OYO network under the mark “OYO Rooms”, which hotels or guesthouses are owned and operated independent third parties. [5] The 2nd defendant is a private limited company incorporated in Malaysia. The 2nd defendant is the subsidiary company of the 1st defendant. [6] The plaintiff and the defendants entered into the MOCA on 25.10.2018. In the MOCA, the plaintiff is referred to as “Hotel”, the 1st defendant as “OYO SG” and the 2nd defendant as “OYO MY”. Both defendants are referred to collectively as “OYO” in the Agreement. S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 3 [7] The MOCA expressly states that the signing date of the Agreement is 25.10.2018 and that it will come into effect on 31.10.2018, which date is defined as “Live Date” in the Agreement. [8] There is a lock-in period of 3 months in clause 12.2 of the MOCA, whereby the parties are not permitted to terminate the MOCA within 3 months of the date of the Agreement. [9] In consideration of the defendants, among others, granting the plaintiff permission to utilize the OYO Know-How, for the Hotel to be listed on OYO Platform and providing the other services agreed in the MOCA, the plaintiff agreed to pay the management fees stipulate in clause 2.1 of the MOCA to OYO. [10] Nonetheless, as agreed by parties and documented in Annexure 4 of MOCA, the management fees was waived for a period of 3 months from 31.10.2018 (“Waiver of Management Fees”). [11] On 15.01.2019, the plaintiff through email and post issued a notice of termination to the 2nd Defendant, where it gave notice that the MOCA will be terminated on 31.10.2019 (“Notice of Termination”). The Plaintiff’s Case [12] The plaintiff contends that the defendants had represented themselves as a company capable of and specialised in providing all services needed to facilitate hotel reservations through their online platform consisting of (a) a website at www.oyorooms.com and (b) a mobile application with the name and style of “OYO Rooms”. The defendants also represented that they provide operational expertise to hotels to help maintain the hotels’ standards. S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 4 [13] The plaintiff claims that by reason of the defendants’ representation, it entered into the MOCA with the defendants on 25.10.2018. [14] On 15.01.2019, the plaintiff issued the Notice of Termination, which was to take effect on 31.01.2019. However, by agreement of the parties, the MOCA was terminated on the later date of 17.02.2019. The plaintiff says that it had issued the Notice of Termination due to the defendants non-compliance with the MOCA, unsatisfactory services by the defendants to the plaintiffs, lack of transparency in the operating and accounting model in the management of the Hotel. [15] It is the plaintiff’s case that the “Lock-In” period expired after 25.01.2019; hence, the MOCA was legally terminated on 17.02.2019

The defendants charged the plaintiff with Management Fees for the period from November 2018 to February 2019 even though the parties had agreed to a waiver of the Management Fees in Appendix 4 of the MOCA for a period of 3 months from 31.10.2018, Despite the plaintiff’s repeated requests and reminders to the defendants to provide a written explanation S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 5 as why it was charging the Management Fees during the 3 months waiver period, the defendants failed, neglected and/or omitted to do the same.

The defendants had unilaterally lowered the Hotel’s price, which resulted in the plaintiff losing substantial income, particularised below: i. RM74,709.57 in November 2018; ii. RM85,848.57 in December 2018; iii. RM55,873.96 in January 2019; and iv. RM59,398.50 in February 2019.

The defendants’ failure to provide services and to maintain the standards and quality as promised, caused the plaintiff to suffer damage to its reputation, where, among others, the plaintiff’s customers — who felt that they have deceived and distressed by the disruptions caused by the defendants and/or their representatives and/or agents, which have not been dealt with properly — have chosen to share their anger on social media platforms.

After the termination of the MOCA, on or around 30.03.2019, the defendants moved the plaintiff’s customers from the Hotel to Adiff Palace Sepang Hotel, a hotel which is managed by the defendants. Despite the plaintiff’s repeated requests, the defendants failed to provide an explanation for the incident. S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 6

The defendants failed to deliver the ownership of the Online Travel Agents (“OTAs”) after the termination of the MOCA, in breach of clause 13.3 of the Agreement.

The defendants had taken steps to prevent and/or restrain the plaintiff and/or the Hotel from obtaining reservation from websites and/or relevant booking engines, thus affecting the plaintiff’s profit.

After the termination of the MOCA, the defendants unilaterally and/or with other third parties altered the information on Google service about the Hotel by stating “Sky Star Hotel Sepang KLIA is permanently closed”. [18] Further, the plaintiff contends that the defendants had infringed the plaintiff’s registered trademark “Sky Star Hotel” by using without the plaintiff’s knowledge and consent the “Sky Star Hotel” together with the defendants’ “OYO” mark to indicate a relationship between the defendants’ good and services with the plaintiff. [19] The plaintiff filed a police report against the defendants on 10.09.2020. [20] In its statement of claim (“SOC”), the plaintiff sought for the following reliefs against the defendants: i. that MOCA was validly terminated pursuant to the letter of termination dated 17.01.2019 sent by the plaintiff to the 2nd defendant; S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 7 ii. that the 1st and the 2nd defendants are jointly and/or severally liable for the tort of unlawful interference of the plaintiff’s trade and business at the Hotel; and iii. that the 1st and the 2nd defendants have jointly and/or severally infringed the plaintiff’s intellectual property rights registered over the “Sky Star Hotel” trademark. i. from interfering and/or dealing in the affairs and/or administration of the plaintiff and/or the Hotel; ii. from carrying out the operations of the Hotel based on the Notice of Termination; iii. from marketing, distributing, promoting, printing, publishing all and/or any part of the plaintiff’s registered “Sky Star Hotel” trademark; i. immediately upon being served with a copy of this Court’s Judgment or Order to surrender to the plaintiff or to its solicitors all the Online Tavel Agents (“OTA”) in the possession, custody, control or authority of the Defendants, its directors, officers, employees, staff or agents and for the defendants to affirm an affidavit stating that they are not in S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 8 possession, custody, control of the OTA and to serve a copy of the affidavit to the plaintiff’s solicitors; ii. within 7 days from being served with a copy of this Court’s Judgment or Order to file and serve an affidavit disclosing all and every information, business, documents and records of the defendants related to the goods and businesses of the defendants, which uses any part of the plaintiff’s intellectual property rights over the trademark “Sky Star Hotel”; and iii. within 14 days from being served with a copy of this Court’s Judgment or Order to publish a notice apologising to the plaintiff for the infringement of the plaintiff’s intellectual property rights over the registered trademark “Sky Star Hotel” in the local daily newspaper, namely The Star, New Straits Times, Sin Chew Jit Poh, Tamil Nesan, Berita Harian and Utusan Malaysia within the terms to be agreed upon by the plaintiff and to immediately serve an affidavit affirming the same.

General damages, aggravated damages and exemplary damages. S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 9 The Defendants’ Defence and Counterclaim [21] The defendants expressly deny that they had made the representations alleged by the plaintiff in paragraph 5 of the SOC i.e. that the defendants had represented themselves as a company capable of and specialised in providing all services needed to facilitate hotel reservation through the website at www.oyorooms.com and the mobile application “OYO Rooms”. They further deny that the plaintiff’s claim that it had signed the MOCA based on the defendants’ representation and assurance that they were able to provide all the services required to facilitate reservation and management of the Hotel’s services. [22] The defendants also deny that they had been appointed as the operators of the Hotel pursuant to the MOCA. The defendants plead that pursuant to the MOCA, the plaintiff retained direct management and control over all aspects of the business and operations of the Hotel. [23] The defendants admit that they had received the Notice of Termination on 22.01.2019 but deny that the MOCA was terminated on 31.01.2019 as pleaded by the plaintiff. [24] They further deny that the Management Fee was waived for a period of 3 months pursuant to Annexure 4 of MOCA. [25] The defendants deny that they had sabotage the plaintiff’s business in any away and put the plaintiff to strict proof. They plead that they have no knowledge and are not aware of the alleged damage to the plaintiff’s reputation. [26] The defendants also deny that they had moved the plaintiff’s customers to “the nearest hotels which are managed by the defendants.” S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 10 However, in paragraph 18(a) of their Defence and Counterclaim, the defendants admit having received an email on 31.03.2019 from the plaintiff’s representative alleging that the 2nd defendant had purportedly assigned its guest to Adiff Palace Hotel Sepang. The defendants plead that their representative had on 03.04.2019, informed the plaintiff’s representative that: “the RCOO (Reverse Change of Ownership) of the property is completed and during the RCOO process booking.com migrates the listing from our group login to owner email and creates new credentials for the owner. Once that is done, OYO (Defendants) can’t access the extra net (sic) of that hotel as only the owner is having the new credentials”. [27] With regards to the plaintiff’s allegation that the defendants, in breach of clause 13.3 of the MOCA, has not delivered the ownership of all the OTAs after the termination of the MOCA, the defendants plead in paragraph 18 of their Defence and Counterclaim that their representative on 16.01.2019 had emailed the plaintiff’s representative that “all OTA listing details has been returned to Sky Star Hotel. The booking.com user details has (sic) been shared at 14:34 hrs” and that by an email of 21.02.2019, the plaintiff’s representative had informed the defendants that the plaintiff was informed by the relevant OTAs that “we need to apply for new ownership agreement and the changing of ownership process will take 1 to 2 weeks”. The defendants plead that premised on these emails, “the Plaintiff plainly admits that the defendants had already returned and/or relinquished control/ownership of all relevant OTA account credentials handles back to the Plaintiff.” [28] In the alternative, the defendants plead that the plaintiff to date appears to have regained ownership, access and/or control over all its S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 11 OTA account credentials/handles and that the allegation that the defendants had failed to return the OTA account credentials/handles is academic or without basis. [29] The defendants deny that they had taken steps to prevent and/or restrain the plaintiff from obtaining reservations from websites and/or booking engines. They also deny sabotaging, conspiring to trespass the plaintiff’s computer system or altering the information about the Hotel on Google service by stating that the Hotel is permanently closed. [30] With regards to the plaintiff’s allegation that the defendants had breached it trademark “Sky Star Hotels”, the defendant plead, among others, that pursuant to the terms of the MOCA, the defendants were expressly permitted to co-brand the Hotel by “co-branding OYO with Hotel’s name”. [31] Further, the defendants plead that since the effective termination date of the MOCA on or around 17.02.2019 and at any time thereafter, the defendants had never used and/or utilised the plaintiff’s Marks in any way. [32] The defendants plead that the plaintiff had breached its duties and obligations under the MOCA, particularised below:

the plaintiff failed and/or omitted, whether intentionally and/or otherwise to disclose to the defendants that the plaintiff had an existing agreement with Agoda under the Agoda Advance Guarantee Program (“Agoda AGP”) prior to executing the MOCA.

The plaintiff breached its post-termination obligations under clause 13.4 of MOCA, where the plaintiff has to date, without S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 12 the defendants’ consent, continued to use and/or publish the photographs associated with the defendants, including picture of rooms in the plaintiff’s Hotel with OYO’s coverlet, hair and body wash, body lotion and soap with OYO’s logo clearly visible, on various OTAs, including booking.com, agoda.com and hotels.com. [33] The defendants sought the following reliefs against the plaintiff in their counterclaim: be forthwith prohibited and cease to use the “OYO” brand, name and logo (including photographs, signage, advertisement, corporate and promotional images and/materials) in any manner and language whatsoever; ii. be forthwith prohibited and cease from howsoever passing-off or howsoever infringing the OYO/ the defendants’ goodwill and reputation by using the “OYO” brand, name and logo, including but not limited to the use and/or publication of the photographs associated with the defendants (i.e., OYO), including any pictures of rooms with OYO’s coverlet, hair and body wash, body lotion and soap with OYO’s logo on all Online Travel Agencies (“OTAs”), including www.booking.com; www.agoda.com and www. Hotels.com, and the reproduction and use in trade of a S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 13 deceptively or confusingly similar brad, name and logo in any manner and language whatsoever; iii. be forthwith required to remove and/or demolish all materials, objects, and relevant files containing the “OYO” brand, name and logo in any manner and language whatsoever (including photographs, signage, advertisement, corporate and promotional images and/materials) at anywhere including the plaintiff’s premises, events, website (all OTAs) and social media. RM42,270.27 (“Overpaid Sum”) and interest on the Overpaid Sum; and Issues to be tried [34] In essence, the issues to be tried in this case are as follows:

Whether the defendants had given the plaintiff a copy of the signed and sealed MOCA?

Whether the parties had agreed to the exemption of the Management Fee pursuant to Annexure 4 of the MOCA? Whether the defendants had wrongfully and in breach of the terms of the MOCA charged the plaintiff the Management Fee?

Did the defendants unilaterally lower the Hotel room rates? S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 14

Was the MOCA validly terminated pursuant to the Notice of Termination dated 15.01.2019 sent by the plaintiff to the defendants?

Upon the termination of the MOCA, did the defendants handover the ownership of all Online Travel Agents (“OTAs”) to the Hotel?

Whether the plaintiff prior to signing the MOCA had disclosed the Agoda AGP to the plaintiff’s representative? Whether the Agoda AGP is in breach of the terms of the MOCA?

Did the defendants sabotage the plaintiff by way of unlawful interference into the trade or business of the plaintiff?

Are the defendants allowed to co-brand OYO with the plaintiff’s name and trademark after the termination the MOCA?

Did the defendants’ prove that they had overpaid the plaintiff in the sum of RM42,270.27? Analysis and Findings of this Court Issue (1): Whether the defendants had given the plaintiff the signed and sealed copy of the MOCA? [35] The plaintiff pleads that they defendants had failed to give a copy of the sealed copy of the MOCA despite numerous request. The defendants deny the claim. [36] However, the defendants have to date failed to produce any evidence to show that they had forwarded the signed and stamped copy S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 15 of the MOCA to the defendants. In fact, the copy of the MOCA in the Common Bundle of Documents (Bundle B) tendered in Court during the trial are unsigned by both the 1st and 2nd defendants. It is only signed by the plaintiff. The defendants did not produce a copy of the MOCA that they had signed in their bundle of documents. [37] The defendant’s witness Raimi Raj bin Kumara Raj (“DW2”), confirmed that he was the person named “Vishal Raj” in the emails between the defendants and the plaintiff and who was the defendants’ representative who had negotiated the MOCA with the plaintiff. DW2 informed the Court that he had changed his name from “Vishal Raj” to “Raimi Raj” about 10 years ago. [38] DW2 said that he had no idea why the MOCA was not stamped. Although DW2 claimed to have given a copy of the signed MOCA to the plaintiff, when asked under cross-examination how did give a copy of the signed MOCA to the plaintiff and` whether he gave the plaintiff a hard-copy of the MOCA, DW2 answered he can’t remember. [39] The defendants claim that they had passed the signed and sealed copy of the MOCA to the plaintiff. Accordingly, under sections 101 and 102 of the Evidence Act 1950, the burden of proof is on them to prove that they had given a copy of the signed and sealed MOCA to the plaintiff. However, the defendants failed to do so. [40] Accordingly, this Court finds that the defendants failed to prove that they had given a copy of signed and sealed MOCA to the plaintiffs. Issue (2): Whether the parties had agreed to the exemption of the Management Fee pursuant to Annexure 4 of the MOCA? Whether the S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 16 defendants had wrongfully and in breach of the terms of the MOCA charged the plaintiff the Management Fee? [41] Clause 2 of the OYO states that the defendants are entitled to charge Management Fee on the gross revenue earned on all bookings received by the Hotel on the basis stipulated in clause 2 of the Agreement. Clause 2.1 reads as follows:

2.1 In consideration of marketing and consulting services provided thereunder, OYO will be entitled to a share of the gross revenue earned on all bookings received by the Hotel on the following basis. Slabs Fee Description OYO Share Gross revenue less than <MYR60,000> Customer Acquisition Fee to be charged by OYO MY – on Gross Revenue from all OYO Channels (such as OTAs, OYO Mobile Application, OYO Website etc.), including SST but excluding tourism tax and Revenue from Walk-ins 20% Service Fee to be charges by OYO SG – on Gross Revenue (including Revenue from Walk-in Channels), including SST but excluding tourism tax. 2% Service Fee to be charges by OYO MY – on Gross Revenue (including Revenue from Walk-in Channels), including SST but excluding tourism tax. 3% [42] Pursuant to Annexure 4 of the OYA, the parties agree to a waiver of the management fee for a period of 3 months from 31.10.2018. Annexure 4 of the OYO reads as follows: S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 17 ANNEXURE 4: MANAGEMENT FEE WAIVER This is to certify that our property Sky Star Sepang Hotel KLIA at No. 58 Jalan 2, Bandar Baru Salak Tinggi, 43900 Sepang, Selangor has now entered into a service and marketing agreement with OYO. The revenue, inventory and booking management of our property will henceforth be managed by OYO Rooms on Online & B2B sales channel for 52. This annexure serves as a reference to 2.1 of the Main Agreement signed between the two parties dated 25th Oct 2018 for agreed exemption on Management Fees of <2%> up to a period of <3 months> from Live Date <31st Oct 2018>. All accounts and statement will be routed through Oravel Stays Singapore Pte Ltd (Citibank A/C Number ………….) ……….. [Emphasis added] [43] The plaintiff claim that notwithstanding the waiver of the management fee in Annexure 4 of the MOCA for 3 months from 31.10.2018 to 31.01.2019, the defendants had charged the plaintiff the management fees from November 2018 to February 2019. [44] The defendants do not deny having charged the management fees. Their position is that the agreement in Annexure 4 of the MOCA is for a waiver of only 2% of the management fees and not the whole management fees. The defendants plead in paragraph 14 (c) of their Defence and Counterclaim that Annexure 4 read together with clause 2.1 of the MOCA: “contractually entitles the Defendants to its shares of gross revenue from all the bookings by the Plaintiff’s Hotel on the basis set out in Clause 2.,1 of the MOCA with an exemption of 2% (pursuant to Annexure 4 of MOCA) from the agreed Defendants’ share under Clause 2.1 of MOCA. Therefore, the allegation at paragraph 16.1 and 16.2 of the Statement of Claim, namely that the exemption S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 18 of the “management/service fee” is purportedly a full exemption, is plainly erroneous and contrary to the terms of the MOCA.” [45] Additionally, during the trial, the defendants’ witnesses did not deny that they had charged the plaintiff the management fees during for the 3 months period. [46] Reading MOCA as a whole and the express words in Annexure 4, this Court finds that the parties had agreed to waive the whole of the management fees, and not just 2% of the management fees, for the period of 3 months from 31.10.2018. [47] Moreover, this 3 months waiver period ties in with the “Lock-In” period under clause 12.2 of the MOCA, whereby neither party has the right to terminate the agreement. It also ties in with DW2’s testimony during the trial that OYO had agreed to do a “trial period of 3 months” for the management fee agreement. [48] Accordingly, for these reasons, this Court finds that the parties had agreed to an exemption of the management fee for a 3 months waiver period pursuant to Annexure 4 of MOCA. [49] Hence, this Court finds that the defendants had wrongly charged the plaintiff the management fees for the period between November 2018 to February 2019 in breach of the waiver in Annexure 4 of MOCA. Issue (3): Did the defendants unilaterally lower the Hotel room rates? [50] In its Notice of Termination of the MOCA to the defendants, the plaintiff stated, inter alia, that one of its biggest challenge was the lower rates offered by OYO, which is below the fixed minimum rate offered by the Hotel. The plaintiff stated: S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 19 …………. As you are aware, we have been experiencing numerous problems with OYO marketing services you have been provided [sic] from 1st November 2018 till to date. Our toughest challenge were the lower rates being offered by OYO despite we have fixed minimum rate to be offered by OYO despite we have fixed minimum rate to be offered yet OYO continue to do the same till today. The details of these problems have been communicated to you via email, phone calls and WhatsApp chat in our previous said correspondence, and you have not satisfactorily answer any questions. ………… [Emphasis added] [51] As regards the plaintiff’s allegation that the defendants had unilaterally lowered the Hotel’s price, the defendants do not deny that they had unilaterally lowered the Hotel’s prices. [52] However, the defendants deny that they had received any requests or reminders from the plaintiff at any time to “establish and preserve to maintain and improve the sale of rooms for the said Hotel per month.” Further, they plead in paragraph 15 (a) of their defence and counterclaim that pursuant to clause 7.3.3 of the MOCA, the 1st defendant has “full discretion to determine the room rates in accordance with its prevailing pricing policy”. [53] Clause 7.3 of the MOCA states:

7.3 In connection with listing of Hotel on OYO Platform, OYO SG shall: ........

7.3.3 have full discretion to determine the room rates in accordance with its prevailing pricing policy, OYO SG may consult or authorize OYO MY in determining the correct hotel pricing. [54] Based on the wordings in clause 7.3.3 of the MOCA, this Court finds that in connection with the listing of the Hotel on the OYO platform, while S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 20 the MOCA is in effect, the 1st defendant has full discretion to determine the room rates in accordance with its prevailing pricing policy. [55] However, the defendants did not tender any evidence during the trial to prove that the 1st defendant had lowered the Hotel’s room rates in accordance with it prevailing pricing policy. The defendants also did adduce any evidence to show that the 1st defendant had consulted or authorised the 2nd Defendant in determining the correct pricing policy for the Hotel. [56] This Court hereby finds that the defendants had unilaterally lowered the Hotel’s prices. Issue (4): Was the MOCA validly terminated pursuant to the Notice of Termination dated 15.01.2019 sent by the plaintiff to the defendants? [57] Clause 12.1 of the MOCA states that the Agreement will be valid an binding on the parties unless terminated by either party in accordance with the terms of the Agreement. [58] Under clause 12.2 of the MOCA, either party may terminate the MOCA at the end of the period of 3 months (“Lock-In”). However, it is not clear from the wordings in clause 12.2 whether the 3 months period starts from the date of the signing of the Agreement (i.e. 25.10.2018) or the effective date of the Agreement (i.e. 31.10.2018). Clauses 12.1 and 12.2 reads:

12.1 All obligations (other than those stipulated in Clauses 2 and 7) under this Agreement shall come into force on the Signing Date and obligations under Clauses 2 and 7 shall come into force on the date communicated by OYO to the Hotel 31st Oct 2018 (Live Date). This Agreement will be S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 21 valid and binding upon the Parties unless terminated by either Party in accordance with the terms of this Agreement.

12.2 Neither party will not have the right to terminate the agreement for a period of 3 months (Lock-in). ………. [Emphasis added] [59] The plaintiff in a letter dated 15.01.2019 informed the defendants that it was terminating the MOCA with effect on 31.01.2019. The effective date of the termination was later extended by mutual agreement of the parties to 17.02.2019. [60] Although the plaintiff had sent the Notice of Termination on 15.01.2019, the termination only took effect after the Lock-In period. The MOCA was terminated pursuant to the Notice of Termination with effect on 17.02.2019, which is 3 months after the signing date and effective date of the Agreement. [61] The defendants’ witness DW1 agreed that the plaintiff is entitled to terminate the MOCA after the Lock-In period ended: Plaintiff’s Counsel: So, do you agree with me that the Plaintiff entitled to terminate the agreement after the locking period ended? Yes, the plaintiff is entitled to terminate after the locking period ended. [62] For these reasons, this Court finds that the MOCA was validly terminated pursuant to the Notice of Termination. S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 22 Issue (5) Upon the termination of the MOCA, did the defendants handover the ownership of all Online Travel Agents (“OTAs”) to the Hotel? [63] Pursuant to item 1 of Annexure 2 of the MOCA, the plaintiff agreed to share all the Hotel’s OTA credentials with the defendants prior to the Hotel going on the OYO Platform. Item 1 of Annexure 2of the MOCA reads: During the contract tenure, no OTA bookings would be hidden from OYO. [64] Upon termination of the MOCA, under clause 13.3 of the Agreement, OYO is contractually obliged to handover ownership of all the OTAs to the Hotel. Clause 13.3 reads: Upon termination or expiry of this contract, OYO shall handover ownership of all Online Travel Agents (OTAs) to the hotel. [65] The plaintiff claims that the defendants, since the termination of the MOCA to date, have failed to handover the ownership of the OTAs to the plaintiff. The plaintiff claims that this has caused difficulty and disruption for it to gain access to most of the OTAs such as Booking.com, Traveloka, Expedia and Agoda. [66] The defendants in their defence and counterclaim pleaded that the plaintiff’s allegation that the defendants failed to return the OTA account credentials/handles are academic and/or without basis. They plead in paragraph 16(b)(iii) that the plaintiff admits that the defendants had already returned and/or relinquished control/ownership of all relevant OTA S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 23 account credentials/handles back to the plaintiff. They plead in the alternative in paragraph 16(b)(iv) that the plaintiff appears to have regained ownership, access and/or control over all its OTA account credentials/handles. [67] However, contrary to their pleaded defence, during the trial, the defendant’s witnesses DW1 and DW2 both admitted that the defendants have not handed over the complete listing of the OTAs to the plaintiff. Excerpts of DW1 and DW2’s testimonies under cross-examination are reproduced below: Plaintiff’s Counsel: My question to you, did ever the Defendant handover the complete listing to the Plaintiff? This I am not aware ……………….. Plaintiff’s Counsel: So now at page 63, this was an email from Jagan [PW2] to Mr Vishal Raj [DW2], on 16th Feb, wherein Mr Jagan was requesting for the password urgently to change the new password and this connect on the OTA channel mapping. Do you agree with me? Yes, I agree …………. Plaintiff’s Counsel: Do you agree with me that they never comply with the demand or request by Jagan [PW2]? The Defendant said that the termination is until 17, we got time until 17 to do that. Am I right to say that? Yes. S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 24 Plaintiff’s Counsel: Okay, so I put it to you that yet the Defendant never give password to the Plaintiff, based on this email, do you agree with me? Yes ……………… Plaintiff’s Counsel: None of the email which you refer in your Witness Statement, one by one, none of the emails show that the listing of the OTA or the username has been surrender back to the Plaintiff? The email shows the intent. Plaintiff’s Counsel: You agree with me or not? Agree that there is no change of account Plaintiff’s Counsel: So, I put it to you that the Defendant failed to hand over the comprehensive or complete list of the OTAs to the Plaintiff upon termination of the MOCA. Do you agree with me? I agree with you. [68] Accordingly, based on the defendants’ failure to prove that they had handed over ownership of all the OTAs to the plaintiff upon the termination of the MOCA and DW1 and DW2’s admissions, during the trial, that the defendants have not handed over the list of all the OTAs to the plaintiff, this Court finds that the defendants in breach of the MOCA, have not handed over ownership of all the OTAs to the Hotel upon termination of the MOCA. S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 25 Issue (6): Whether the plaintiff prior to signing the MOCA had disclosed the Agoda AGP to the plaintiff’s representative? Whether the Agoda AGP is in breach of the terms of the MOCA? [69] The defendants in their counterclaim allege that the plaintiff failed and/or omitted, whether intentionally and/or otherwise to disclose to the defendants that the plaintiff had an existing agreement with Agoda under the Agoda Advance Guarantee Program (“Agoda AGP”) prior to executing the MOCA. [70] During the term of the MOCA, the plaintiff is prohibited under clause 10 of the MOCA to enter into any agreement with online aggregators. Clause 10 of the MOCA states:

10.1 The Hotel shall not during the period of this Agreement enter into any agreement directly or indirectly to engage with online aggregators including but not restricted to Zen Rooms, Nida Rooms, Makemytrip, Golblbo in any manner for or in relation to selling/ marketing/ promoting rooms at the Premises. Provided however that the Hotel may continue to sell/ promote rooms either directly or through any other business partner, service provider (other than specifically named above) for marketing or booking services through online or offline channel with prior consent of OYO (“Permitted Channel”). [71] The plaintiff’s case is that the defendants failed to prove that Agoda is an online aggregator. [72] During the trial, the defendants failed to adduce any evidence to prove that Agoda is an online aggregator. Accordingly, as Agoda is not an online aggregator, the plaintiff is not in breach of clause 10.1 of the MOCA by the fact that it had entered into the Agoda AGP program prior to entering into the MOCA with the defendants. S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 26 [73] The plaintiff claims that even if Agoda is an online aggregator, the plaintiff had disclosed to the defendants prior to entering into the MOCA with the defendant, that it had entered into the AGP Programme with Agoda. This was admitted by DW2 under cross-examination: Plaintiff’s Counsel: But I put it to you that the Defendant have knowledge of the Agoda programme before the MOCA has been executed. Do you agree with me? You mean? They did say they wanted to enter but they didn’t say they signed the agreement. It’s two different things. Plaintiff’s Counsel: When they informed you? They informed, I think on the first meeting because they were pushing me to sign the agreement as fast as I can. Plaintiff’s Counsel: You mean the first meeting with Jagan? Yes, he said that. [74] Accordingly, based on DW2’s testimony, this Court finds that prior to entering into the MOCA, the plaintiff had disclosed the Agoda AGP to DW2, who was the defendant’s representative. [75] Further, this Court finds because the defendants did not prove that Agoda is an online aggregator, the plaintiff is not in breach of clause 10 of the MOCA. S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 27 Issue (7): Did the defendants sabotage the plaintiff by way of unlawful interference into the trade or business of the plaintiff? [76] The plaintiff claim that the defendants had sabotaged their business by way of unlawful interference into the trade or business of the plaintiff by reason of the following acts: Hotel losing income. Hotel. DW1 admitted during the trial that OYO had sent the guests who had booked to stay in the Hotel (i.e. Sky Star Hotel) to Adiff Palace Hotel. DW1 informed the Court that the transfer was done by OWO manually. Judge So, why did you send them to Adiff Hotel It was sent, that is true, manual process, because of the transition period. Judge: My Tay, you just told me just now that is actually done manually right? The moving of the hotel guest to another hotel is done manually? S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 28 Correct During the trial, it was shown that OYO had relocated guests by the name of “Krishna” and “Wilson” to Adiff Palace Hotel. KLIA is permanently closed”. DW1 denied that it was the defendants who had written on Google services that “Sky Star Hotel Sepang KLIA is permanently closed”. He said that Google is free platform and that anyone can suggest an edit of the listing on the platform. However, the telephone number on the Hotel’s listing on Google was OYO’s customer services number. Even though the defendants denied having changed the Hotel’s listing on the website, DW2 admitted during the trial that the defendants have full control of the Hotel’s webpage. DW2 testified that OYO’s “Meta search team” in India deals directly with Google.

Failure to notify the OTAs that the MOCA had been terminated. [77] The question for this Court is whether the defendants by their aforementioned actions had committed the tort of unlawful interference with the Hotel’s trade or business. [78] The elements which constitute the tort of unlawful interference with trade or business are: (a) interference with the plaintiff’s trade or business; S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 29 Management Sdn Bhd [2024] 2 MLJ 652 (CA). [79] The Court of Appeal in Puaneswaran a/l Renganathan (trading under the name and stule of TSR Herbal World) & Ors v Jyothy Laboratories Ltd [2023] 1 MLJ 192 held: [169] Regard may also be had to Worldwide Rota Dies Sdn Bhd v Ronald Ong Cheow Joon [2010] 8 MLJ 297, where Abdul Malik Ishak J (later JCA) held that the tort of unlawful interference arises when one person uses unlawful means with the object of causing damage to another. His Lordship went on to provide an example: Thus, in a situation where the defendant commits an actionable wrong, like inducing a breach of contract … or where the defendant authorises or procures a breach of copyright for purpose of harming the plaintiff (CBS Songs Ltd & Ors v Amstrad Consumer Electronics Plc & Anor [1988] 1 AC 1013 (HL)), the defendant is said to commit the tort of unlawful interference. [170] Hanipah Farikullah J (now JCA) in Ken Holdings Bhd & Ors v Sri Seltra Sdn Bhd & Ors [2014] 9 MLJ 858 also observed as follows: [135] The tort of unlawful interference arises when one person using unlawful means with an object of causing damage to another (see Merkur Island Shipping Corpn v Laughton [1983] 2 AC 570 (HL) at p 606. [Emphasis added] [80] This Court finds that the defendants action in manually moving customers who had booked to stay at the Hotel to Adiff Palace Hotel, is interference with the plaintiff’s trade or business with an object to causing damage to the plaintiff. Similarly, their action in not handing over all the OTAs or notifying the OTAs of the termination of the MOCA between the plaintiff and defendants unlawfully interfered with the plaintiff’s trade or S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 30 business at the Hotel. Furthermore, as the defendants’ “Meta search team” has full control of the Hotel website listing on Google, it is more probable than not that someone in the team had written on Google services that “Sky Star Hotel Sepang KLIA is permanently closed”. [81] Accordingly, the Court finds that the plaintiff had proven on a balance of probabilities that the defendants by its actions had committed the tort of unlawful interference of the plaintiff’s trade or business relating to the Hotel. Issue (8): Are the defendants allowed to co-brand OYO with the plaintiff’s name and trademark after the termination the MOCA? [82] The defendants continued to use the plaintiff’s “Sky Star Hotel” trademark after the termination of the MOCA. The plaintiff contend that the defendants’ continued use of its “Sky Star Hotel” trademark after the termination of the MOCA is in breach of its trademark. [83] In response to the plaintiff’s allegation that the defendants had breached it trademark “Sky Star Hotels”, the defendant plead, among others, that pursuant to the terms of the MOCA, the defendants were expressly permitted to co-brand the Hotel by “co-branding OYO with Hotel’s name”. Further, the defendants plead that since the effective termination date of the MOCA on or around 17.02.2019 and at any time thereafter, the defendants had never used and/or utilised the plaintiff’s Marks in any way. [84] However, the evidence tendered during the trial showed that the defendants continued to co-brand the “OYO” trademark with the “Sky Star Hotels” trademark. S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 31 [85] The question for this Court is whether the defendants are allowed to co-brand OYO with the plaintiff’s name and trademark after the termination of the MOCA. [86] Under clause 13.4 of the MOCA, upon termination of the MOCA, the Hotel is expressly prohibited from using the “OYO” trademarks belonging to the defendant. Although, the MOCA is silent on the defendants’ use of the plaintiffs’ “Sky Star Hotel” trademark, by reason of the prohibition of the co-branding of the “OYO” and “Sky Star Hotel” trademark, it follows therefore that the defendants too are not allowed to use the “Sky Star Hotel” trademark after the termination of the MOCA. [87] Therefore, this Court finds that the defendants continued use of the “Sky Star Hotel” trademark after the termination of the MOCA infringed the plaintiff’s “Sky Star Hotel” trademark. Issue (9): Did the defendants’ prove that they had overpaid the plaintiff in the sum of RM42,270.27? [88] The defendants claim that it had overpaid the plaintiff the sum of RM42,270.27. Therefore, under sections 101 and 102 of the Evidence Act 1950, the burden of proof is on the defendants to prove such overpayment. [89] The plaintiff had on numerous occasions asked from the defendants for explanation and for proof of the purported overpayment. The defendants have not provided the explanation and proof to the plaintiff. [90] During the trial, the defendants failed to adduce any evidence to prove the alleged overpayment of RM42,270.27 to the plaintiffs. S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 32 [91] Therefore, this Court finds that the defendants failed to prove that they had overpaid the plaintiff the sum of RM42,270.27.

[92] Therefore, based on the aforementioned findings, In respect the plaintiff’s claim against the defendants, this Court gives judgment to the plaintiff and makes the following Orders:

It is hereby declared that:

the Marketing and Operational Consulting Agreement dated 25.10.2018 (“MOCA”) was validly terminated pursuant to the letter of termination dated 15.01.2019 sent by the plaintiff to the 2nd defendant;

the 1st defendant and the 2nd defendant are jointly and/or severally liable for the tort of unlawful interference of the plaintiff’s trade and business at Sky Star Hotel located at No. 58 Jalan 2 Bandar Baru Salak Tinggi, 43900 Sepang, Selangor (the “Hotel”); and

the 1st defendant and the 2nd defendant have jointly and/or severally infringed the plaintiff’s intellectual property rights registered over the “Sky Star Hotel” trademark.

This Court hereby makes the following permanent injunctions to permanently injunct and restrain the defendants themselves or through their directors, their partners, employees and/or agents:

from interfering and/or dealing in the affairs, administration and/or operations of the Hotel; S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 33

from carrying out the operations of the Hotel;

from marketing, distributing, promoting, printing, publishing all and/or any part of the plaintiff’s registered “Sky Star Hotel” trademark;

The defendants are ordered to serve on each of the Online Travel Agents (“OTAs”) a notice confirming:

that the MOCA between the plaintiffs and the defendant had been terminated; and

that the defendants to not have any objections to the plaintiff setting up their own account with each of the OTA.

The defendants are ordered within 14 days from the date of this Judgment to file in this Court and serve on the plaintiff an affidavit:

evidencing the delivery of the notice of confirmation ordered in item (3) above; and

disclosing all and every information, business, documents and records of the defendants relating to all and/or any of the defendants’ goods and business which uses any part of the plaintiffs registered “Sky Star Hotel” trademark.

The defendants are ordered within 14 days from the date of this Judgment to publish a notice of apology to the plaintiff, which content is approved by the plaintiff, apologising for the defendants’ infringement of the plaintiff’s intellectual property rights in registered “Sky Star Hotel” trademark in the following newspapers The Star, S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 34 The New Straits Times, Berita Harian, Utusan Malaysia, Sin Chew Jit Poh, and Tamil Nesan.

The defendants are ordered to account for and pay the plaintiff for the profits made by the 1st and/or 2nd defendants as a result of their infringement of the plaintiffs registered “Sky Star Hotel” trademark.

Damages suffered by the plaintiffs to be assessed by this Court.

Interest at the rate of 5% per annum from the date of this judgment and full settlement.

The defendants counterclaim against the plaintiffs is dismissed.

The plaintiff is granted leave to apply for consequential orders arising from the Orders made herein.

Costs of RM50,000.00 to be paid by the defendants to the plaintiff, subject to allocatur. Date: January 8, 2025 -Sgd-FAIZAH JAMALUDIN Judge High Court of Malaya at Shah Alam S3 Ventures Sdn Bhd v Oravel Stays Singapore Pte Ltd & Anor 35 COUNSELS: For the Plaintiff: Kirubagaran Baskaran (Siti Nor Arifiyah Subahudin with him) Messrs B B Kiru & Partner PT 5732 AEV, 1st Floor, Jalan TS 2/1D, Taman Semarak II 71800 Nilai, Negeri Sembilan For the Defendants: Soh Gee Kian (Noor Syazleen Azmira Mohamad with him) Messrs GK Soh & Partners PT 13688, Tingkat Satu, Taman Chukai Utama, 24000 Kemaman, Terengganu