Louis Vuitton is the most counterfeited luxury brand in the world. Entrupy, an AI-based authentication service for detecting counterfeit goods, reported in its 2025 State of the Fake report that nearly one in three Louis Vuitton authentication submissions turned out to be counterfeit.
Against this backdrop, the Singapore High Court’s decision in Louis Vuitton Malletier v Ng Hoe Seng on July 2 2025 provides timely clarification of the statutory damages regime when a counterfeit trademark is used.
The defendant, a sole proprietor trading under EMCASE SG, operated Instagram shops (@emcase_sg and later @emcrafts_sg). He marketed phone cases, watch straps, wallets, passport covers, and pouches bearing Louis Vuitton’s registered marks without consent, claiming they were “upcycled” from authentic Louis Vuitton materials. Trap purchases showed that some items were not genuine, and expert evidence confirmed they could not have been authentic.
Louis Vuitton commenced action against the defendant for trademark infringement in August 2023. As the defendant did not file a notice of intention to contest or not contest, judgment in default was entered in Louis Vuitton’s favour. The matter then proceeded to an assessment of damages, during which the court considered evidence that the defendant had continued selling through a new Instagram account until May 2024. This conduct was relevant in determining the flagrancy of infringement and the need for deterrence.
Upcycling and counterfeiting
The court rejected the defendant’s attempt to rely on the term “upcycled” as a shield. The court held that this was essentially a disclaimer, and disclaimers are irrelevant when determining whether a counterfeit trademark has been used. Drawing on Staywell Hospitality v Starwood Hotels (2014), the court emphasised that extraneous factors such as disclaimers, pricing, or packaging have no role in the statutory inquiry.
Under Section 3(6) of the Trade Marks Act 1998 (TMA), which defines “counterfeit trade mark”, the focus is strictly on whether the mark is identical with or nearly resembles the registered mark such that it is calculated to deceive, and whether its application falsely represents the goods as genuine. Once Louis Vuitton’s marks were applied to unauthorised goods, a false representation was inherent. Even if authentic materials had been used, the resulting products became the defendant’s own and not genuine Louis Vuitton goods. Labelling them as “upcycled” could not negate counterfeiting; if it did, counterfeiters would too easily escape liability.
The High Court therefore found that the marks used by the defendant met the definition of a counterfeit trademark in Section 3(6) of the TMA, thereby engaging the remedy of statutory damages at Louis Vuitton’s election.
Statutory damages framework
Section 31(5)(c) of the TMA allows claimants to elect statutory damages where counterfeit marks are used, avoiding the need to prove actual loss. This is especially valuable for luxury brands, since counterfeit buyers rarely overlap with genuine customers, making diverted sales hard to quantify.
The provision also sets two limits:
Up to S$100,000 per type of goods or service; and
A total cap of S$1 million unless higher actual losses are proven.
Louis Vuitton argued that the cap should apply per counterfeit mark, which would have raised the ceiling considerably. The court rejected this, holding that the cap applies per type of goods, not per mark. In this case, nine categories of goods were identified, fixing the maximum at S$900,000.
In determining statutory damages, the court must consider the factors in Section 31(6):
(a) The flagrancy of the infringement of the registered trademark;
(b) Any loss that the claimant has suffered or is likely to suffer by reason of the infringement;
(c) Any benefit shown to have accrued to the defendant by reason of the infringement;
(d) The need to deter other similar instances of infringement; and
(e) All other relevant matters.
These factors confirm that statutory damages are not purely compensatory; deterrence and proportionality are built into the assessment.
Louis Vuitton also invited the court to adopt the Canadian ‘tariff’ approach of fixed damages per infringement, scaled by the scope of operations. The court declined, noting that Singapore’s statutory framework requires a holistic, multi-factorial assessment under Section 31(6). While the Canadian model offered useful guidance in classifying scope of operations (flea market seller, retailer, manufacturer/distributor), the Singapore regime demands broader considerations.
Applying the Section 31(6) factors
Factor (a): Flagrancy of the infringement
The infringement was highly flagrant. The defendant used counterfeit marks across nine product types, mimicked genuine presentation, described items as “LV” products, reposted customer reviews to reinforce authenticity, and relied on influencers to extend his reach. Although not a large-scale distributor, his conduct placed him at the more serious end of retail infringement, especially given the size of his online following.
Factor (b): Loss to the claimant
The court found Louis Vuitton likely suffered some damage to exclusivity, reputation, and goodwill but doubted there were significant lost sales given the gulf in pricing between genuine and counterfeit products.
Factor (c): Benefit to the defendant
The defendant was able to leverage Louis Vuitton’s marks to sell goods at far higher prices than unbranded equivalents, reaping a clear commercial benefit.
Factor (d): Need for deterrence
Deterrence was a central consideration. Louis Vuitton is one of the most counterfeited brands globally, and online platforms make infringement cheap and scalable. The defendant’s conduct – namely, ignoring a cease-and-desist, breaching an injunction, and continuing under a new account – underscored the need for both general and specific deterrence.
Factor (e): Other relevant matters
The court noted the defendant’s absence from proceedings deprived Louis Vuitton of evidence on the scale of sales, a factor weighing against him in the damages assessment.
Balancing these factors, the court awarded S$200,000 in statutory damages. This was below the statutory maximum but proportionate to the defendant’s conduct. The award was also far from nominal, underscoring that statutory damages in Singapore are intended to be meaningful, not symbolic.
A stronger hand for enforcement
Louis Vuitton Malletier v Ng Hoe Seng strengthens brand owners’ enforcement toolkit: where counterfeit marks are used, statutory damages provide a realistic, robust remedy even when actual loss is difficult, if not impossible, to quantify. The court confirmed that statutory damages are both compensatory and deterrent, sending a clear message that online counterfeiting, even by small operators, will not be tolerated.
In today’s era of borderless e-commerce, where counterfeiters can exploit social media platforms and cross-border supply chains to reach consumers instantly, the decision underscores the importance of strong remedies to protect brand exclusivity. Statutory damages provide an effective tool for brand owners faced with elusive infringers and intangible losses, ensuring that the value of registered trademarks is not eroded by opportunistic claims of “upcycling” or other attempts to disguise counterfeiting.
