Proving bad faith in Singapore

Bad faith is frequently pleaded in Singapore trademark disputes, but comparatively few claims succeed. Allegations of bad faith are serious, and the courts have repeatedly emphasised that they must be supported by cogent evidence rather than speculation or hindsight.

The recent decision of the Intellectual Property Office of Singapore in Aswins Home Special v Aswins Sweets & Snacks Pte Ltd (April 2026) provides a useful illustration of how bad-faith claims are assessed in practice. The ruling demonstrates that successful bad-faith claims do not necessarily require direct evidence of copying. In some cases, once a prima facie case has been established, an applicant’s ability to provide a credible explanation for its conduct may become an important consideration.

The leading authority remains the Court of Appeal’s decision in Valentino Globe BV v Pacific Rim Industries Inc (2010). The assessment contains both a subjective and objective element. The tribunal considers what the applicant knew at the time of filing, and whether its conduct would be regarded as commercially unacceptable by ordinary persons adopting proper standards.

Valentino also recognises that bad faith is often proved by inference. Direct evidence of dishonesty is uncommon. Where an opponent establishes a prima facie case based on surrounding circumstances, the evidential burden may shift to the applicant to explain how the mark was adopted.

The Aswins decision provides a useful example of this principle in operation.

The opponent, an Indian manufacturer of traditional sweets and snacks, had sold products in Singapore since at least March 2021 through an exclusive Singapore distributor. The products were marketed under the signs ‘Aswins’ and a corresponding logo.

The applicant was incorporated in July 2023 and shortly thereafter applied to register a mark containing the dominant word “Aswins” for sweets and snacks. The evidence also showed that entities associated with the applicant had adopted a number of business names incorporating “Aswins”, including Aswins Home Special Pte Ltd.

While the opposition succeeded on passing off, the registrar’s analysis of the bad-faith ground provides useful guidance on the operation of the evidential burden in such claims.

A notable feature of the case was the absence of any meaningful explanation from the applicant.

The opponent alleged that the applicant knew of its business and had deliberately adopted the Aswins name. It also pointed to evidence suggesting that individuals connected with the applicant had registered other company names resembling well-known Indian brands.

The decision turned on the cumulative effect of the surrounding circumstances. The opponent had shown prior use in Singapore, the applicant’s adoption of an ‘Aswins’ mark after the opponent’s products had entered the Singapore market, and the incorporation of multiple Aswins business entities linked to the applicant.

Crucially, the applicant did not explain why it chose the name Aswins. Nor did it directly deny knowledge of the opponent. The registrar observed that the applicant had the opportunity to respond to the allegations, but there was “nothing but deafening silence”.

Having found that the opponent had established a prima facie case, the registrar held that the evidential burden shifted to the applicant to provide a credible explanation as to how the mark was derived. No such explanation was forthcoming.

Instead, the applicant sought to rely on a website and financial records to demonstrate use of the application mark. The opponent challenged this evidence, pointing out that the website had only recently been created and that the financial records did not appear to reflect genuine sales transactions. The registrar ultimately remained unpersuaded by the applicant’s evidence and explanations.

The decision does not alter the legal principles governing bad faith. What Aswins demonstrates, however, is the practical importance of the evidential burden. Opponents do not always need direct evidence of copying or dishonest intent. A sufficiently persuasive collection of surrounding facts may be enough to establish a prima facie case. In particular, an applicant’s failure to provide a credible explanation for the adoption of a mark may become a significant factor in the outcome.