Beauty Nation v Herbs Health: implied licence by conduct in distributor relationships

In Beauty Nation v Herbs Health Ben Cao Kang Mu (April 2026), the Singapore High Court dismissed claims for copyright infringement, trademark infringement, and passing off arising from the resale and marketing of genuine products by a long-standing retailer. The decision turns on the parties’ course of dealing and the legal effect of prolonged acquiescence.

The claimant, Beauty Nation, develops and sells traditional Chinese medicine-based health supplements under its trademarks. The first defendant, Herbs Health, had been an authorised retailer of Beauty Nation products for over a decade. The second defendant operated its online retail business.

It was not disputed that the defendants sold genuine Beauty Nation products. Since at least 2017, the defendants had marketed these products through online listings, using product photographs and incorporating Beauty Nation’s trademarks. Beauty Nation was aware of these practices and continued to supply products through its distributor without objection.

The dispute arose when Beauty Nation issued a cease and desist letter and commenced proceedings alleging copyright infringement, trademark infringement, and passing off (including inverse passing off). The defendants denied liability and relied, among other things, on an implied licence arising from the parties’ conduct.

The central issue was whether the defendants’ use of the relevant materials in their online listings was authorised.

The court found that an implied licence by conduct had arisen in this case. This licence permitted the defendants’ use of Beauty Nation’s photographs, copyright materials, and trademarks in the course of marketing and selling the products as an authorised retailer.

This finding was grounded in the parties’ long-standing relationship and course of dealing. In particular:

• Beauty Nation had knowledge of the defendants’ online listings since at least 2017;

• The defendants continued to sell through these channels over several years; and

• Beauty Nation’s distributor continued to supply products during this period without objection.

On these facts, the court inferred consent. The defendants’ use of the materials was therefore authorised.

This illustrates that where a rights holder has knowledge of, and acquiesces in, a particular mode of use over an extended period, the court may infer a licence by conduct.

In light of the implied licence, the copyright claim failed. The defendants’ use of the relevant photographs and materials in their online listings fell within the scope of the licence.

The court did not need to engage in detailed analysis of subsistence or infringement once authorisation was established.

The trademark claim likewise failed. The court held that the defendants’ use of the marks was with Beauty Nation’s consent. As the pleaded grounds of trademark infringement required use without the proprietor’s consent, the claim could not be made out.

The court applied the same key factual findings underpinning the implied licence analysis in rejecting the trademark claim.

Beauty Nation also advanced a claim in passing off, including allegations of inverse passing off. This was rejected.

The court found that no actionable misrepresentation was established. The defendants’ listings did not obscure the origin of the goods, and Beauty Nation’s marks remained visible. There was no suggestion that the defendants were presenting the products as their own.

This demonstrates the difficulty of establishing misrepresentation where the source of the goods remains apparent, even where the retailer applies its own branding or presentation to the listings.

The defendants also counterclaimed under Section 35 of the Trade Marks Act and Section 499 of the Copyright Act, alleging that Beauty Nation’s cease and desist letter constituted groundless threats.

The court found that the threats were actionable, as they extended beyond the statutory exclusions. However, no relief was granted. The court emphasised that relief for groundless threats is discretionary, and a failed infringement claim does not automatically entitle a claimant to relief.

On the facts, the defendants failed to establish any discernible loss arising from the threats. Although they argued that the letter caused them to remove their online listings and suffer immediate commercial impact, the evidence showed that the remaining stock was subsequently sold through their physical retail outlet. In these circumstances, no compensable loss was made out.

The court also declined to grant declaratory or injunctive relief. A declaration was unnecessary given the court’s findings on infringement, and an injunction was unwarranted as the defendants had ceased selling the products and further threats were unlikely.

The decision is fact-driven, but it carries broader implications for brand owners.

First, it highlights the risks of informal distributor relationships. Where retailers are permitted, in practice, to market products using brand assets over an extended period, the boundary between authorised and unauthorised use may become blurred. In such cases, the court may be prepared to infer consent.

Second, a prolonged period of inaction, particularly in the face of known use, may undermine later attempts at enforcement. Conduct that is tolerated over time may later be treated as authorised.

Third, the case illustrates the potential interaction between infringement claims and groundless threats exposure. The case illustrates how allegations at the pre-action stage that extend beyond the statutory exceptions may give rise to counterclaims for groundless threats.

The decision also serves as a reminder that enforcement must remain grounded in both legal merit and commercial reality. The court emphasised that proceedings should not be used to pursue claims lacking sufficient legal basis or to gain commercial leverage. Given the parties’ long-standing relationship and the defendants’ role as an authorised retailer of genuine products, it would have been sufficient for Beauty Nation to revoke any implied licence and request the removal of the online listings. Instead, the escalation to litigation, including seeking injunctive relief to restrain further acts of infringement despite the cessation of sales, was viewed as lacking legal and commercial logic.