The Entertainment Issue - Official Publication of The Law Society of Singapore | July 2017
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Official Publication of The Law Society of Singapore | July 2017
The Entertainment Issue
MCI (P) 082/11/2016
President’s
Message
Considering Conciliation
Mediation is yesterday’s news’ headline. An established the conciliator, not the parties, who often advises the parties
alternative dispute resolution process. Some even call it and develops and proposes the terms of settlement. The
an integral part of dispute resolution; describing the prefix parties come to the conciliator seeking guidance and the
“alternative” as passe. Today, mediation is one of the parties make decisions on proposals made by conciliators.
available arrows in a discerning litigator’s quiver of dispute
At some point during the conciliation, the conciliator will be
resolution skillsets. In April this year, the Law Society rolled
asked by the parties to provide them with a non-binding
out its much awaited Law Society Mediation Scheme. While
settlement proposal. In classical, facilitative mediation, a
a fair amount has been developed on mediation, very little
mediator, (in sharp contrast to the conciliator) will, in most
has been written, talked through and thought through about
cases and as a matter of principle, refrain from making such
conciliation.
a proposal.
There are two distinct conciliation avenues I touch on in this
Conciliation and mediation both look to maintain an
piece. They bear no correlation or nexus to one another. But
existing business relationship. These concepts indeed vary
they merit consideration as future fixes.
substantially in their procedures. In mediation, the mediator
The first avenue is the civil law concept of conciliation. manages the process through different and specific stages:
Conciliation, as a dispute resolution process, envisions introduction, joint session, caucus, and agreement, while the
building a positive relationship between disputants. In parties control the outcome. In conciliation, the conciliator
some civil law countries, conciliation is more common may not follow a structured process. Instead, he or she
than mediation. For instance, in Italy, while conciliation is may administer the conciliation process as a traditional
typically deployed in labour and consumer disputes, Italian negotiation. This may take different forms depending on
judges encourage conciliation of all types of dispute. the case.
Like mediation, conciliation is a voluntary, flexible, The conciliation process is flexible, allowing parties to
confidential and interest-based process. As in mediation define the time, structure and content of the conciliation
proceedings, the ultimate decision to agree to a settlement proceedings. These proceedings are rarely public.
rests with the parties.
It would be apparent by now that for this process to work,
However, conciliation is fundamentally and conceptually the conciliator is typically a skilled and expert practitioner
different than either mediation or arbitration. It occupies its about the subject matter. However, unlike a neutral
own unique niche in the dispute resolution ecosystem. evaluation that entails a typically binding merits assessment
by an expert practitioner, the conciliator seeks to resolve
The “conciliator” is an impartial person assisting parties
problems. When proposing a settlement, the conciliator
by driving their negotiations and directing them towards a
not only takes into account the parties' legal positions but
satisfactory agreement. Unlike arbitration, conciliation is far
also their commercial, financial and/or personal interests.
less adversarial. It involves a diagnostic analysis to identify
In short, conciliation is a problem-solving conclave. Viewed
a violated right and seeks an optimal solution to vindicate
another way, it is (in part) a neutral non-binding evaluation.
that right. Conciliation individualizes an optimal solution.
This could prove more practical than neutral evaluation that
Conciliators direct parties towards a satisfactory common
few practitioners have utilized in recent times.
agreement on that bespoke answer.
Conciliation is used preventively as soon as a dispute or
Although strikingly similar to mediation, there are important
misunderstanding eventuates. A conciliator aims to stop a
differences between mediation and conciliation. In
substantive conflict from developing. This type of conciliation
conciliation, the conciliator plays a direct and central role in
focusses on the root cause of the conflict and future conflict
the actual resolution of a dispute. In conciliation, the neutral
prevention.
third party conciliator is (and is seen as) an authority figure
responsible for figuring out the best solution for parties. It is
Continued on page 4
Singapore Law Gazette July 2017
Contents
President’s Considering Conciliation 01
Message
News From the Desk of the CEO 05
Malaysia-Singapore Bench & Bar Games 2017 08
Features The Celebrity Halo Effect and Passing Off 15
“Ambush Marketing” in Sports under Singapore Law 22
Copyright Reform – What This Means for the Entertainment Industry 28
Columns Compass – Defining Your Social Media Policy 33
Case Notes – Cameron Ford’s International Commercial Cases 36
Practice Matters – Camaraderie at the Bar 38
Tech Talk – Eliminating “Unnecessary Busywork” through Optimal Use of
Office Productivity Tools 42
Practice Support – Fifty Shades of Sexual Offending – Part I 45
The Young Lawyer – Inter-Pacific Bar Association Conference 2017 49
Lifestyle Alter Ego – Changing the Status Quo 52
Travel – A Road Trip through Indonesia 53
Notices Information on Wills 56
Appointments 56
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President’s
Message
Continued from page 1
The role of lawyers is also different in mediation as understanding the process, people, dispute issues, and
compared to conciliation. In mediation, lawyers utilize the range of workable solutions and can be described as
mediation advocacy and proactively mediate to generating “situated”. The choice for conciliators is to make affirmative
and developing innovative solutions for settlement. In interventions based on their knowledge in order to meet
conciliation, they generally offer advice and guidance to other systemic goals such as speediness, fairness and
clients about proposals made by conciliators. low costs.
In a common law conciliation model in the New South There is a second type of conciliation. This aspirational
Wales, the Courts and Tribunal Services NSW (see ) conciliation is described in the conciliation be a step too far, impractical, a touchy-feely
following terms: version of mediation and a glorious waste of time and
costs? I respectfully submit not.
Conciliation is an ADR process where an independent
third party, the conciliator, helps people in a dispute to This model of conciliation seeks to conciliate those who
identify the disputed issues, develop options, consider have been alienated by conflict. It seeks to help them learn
alternatives and try to reach an agreement. how to change their attitudes and behaviour to avoid similar
conflicts in the future. This type of conciliation focuses on
A conciliator may have professional expertise in the
the root cause of the conflict and future conflict avoidance
subject matter in dispute and will generally provide
and prevention. In this sense, a conciliator is a conflict coach
advice about the issues and options for resolution.
that assists parties to take the necessary steps to resolve
However, a conciliator will not make a judgment or
conflict personally and privately. To serve as conciliator
decision about the dispute.
requires deeper skillsets from lawyers. I have witnessed
In distinguishing between conciliators and mediators, the a local variant of this in a service setting spearheaded by
New South Wales fact sheet points out that the role of Professor Lawrence Boo many years back.
conciliators is similar to that of mediators save that the
In an excerpted feedback (from peacemaker.net) given by
conciliator may also:
a foreign judge:
1. have specialist knowledge and give legal information;
... Judges can decide cases, but often they don't have
2. suggest or give expert advice on the possible options time to get to the root of the problem. As a result, litigants
for sorting out the issues in the dispute; and leave court with their cases decided, but they are still
mad. Conciliators try to reconcile the parties, so their
3. actively encourage the parties to reach an agreement.
future association will be harmonious. In the long run,
The NSW guide recommends conciliation as suitable in this eliminates future disputes before they arise.
situations where parties want:-
This is not the last word on both modes of conciliation. I
1. an agreement on some technical and legal issues raise this to stimulate thinking on the subject. The first type
of conciliation leverages on the expertise of the conciliator.
2. assistance with the process
As specialist accreditation expands, the pool of specialists
3. to make the decision with the other participants involved; could prove a fertile source of potential conciliators. They
or could meaningfully value add to the dispute resolution
ecosystem. As conceptual clarity emerges, and its efficacy
4. want advice on the facts in the dispute.
grows with time, conciliation could also be written in as a
(See also link at ) conciliation mode, we need to find a new narrative that goes
beyond costs-saving, time-saving and loss-cutting. A focus
Apart from the typical benefits of mediation (ie party
on the root cause of conflict and restoring relationships could
autonomy, cost-effective and time-efficient resolution
prevent future disputes (especially in family and community
and confidentiality) conciliation ensures that appropriate
settings) from arising let alone dogging our courts.
expertise is brought to bear on the dispute.
(See also )
President
And so typically, a conciliator is chosen due to his or The Law Society of Singapore
her expertise in the context and parameters within
which resolutions occur. This knowledge encompasses
Singapore Law Gazette July 2017
News
CEO's Message
From the Desk of the CEO
Dear Members, In addition to the 70 per cent funding, Singapore law
practices can utilise the Productivity and Innovation Credit
Technology (“PIC”) benefits, which runs only until Year of Assessment
(“YA”) 2018, to cover any remaining cost incurred by
As the SmartLaw Assist scheme came to a close on including it as part of the qualifying expenditure under the
30 June 2017, we were heartened by the response from qualifying activity “Acquisition and Leasing of PIC IT and
member firms. The 82 applications demonstrated that the Automation Equipment” for the purposes of the 400 per
Singapore law firms were not afraid to embrace technology cent tax deductions/allowances or 40 per cent cash payout
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cent of the first year subscription fees for the knowledge Scheme).
management tools that these firms had signed up to would
be paid out of the Education Fund kindly set aside by our For more information, please visit ;
This month, we also saw more than 300 of our members
attend the Future Lawyering Conference as they sought 2. SmartLaw is a Law Society recognition scheme for law
to keep abreast of developments that may dramatically firms who have harnessed legal technology to increase
affect the landscape in which we operate. Globalisation, productivity. Law firms who qualify for the scheme will
technology, evolving client expectations and competition be allowed to use the SmartLaw logo on their website
from non-traditional service providers – these were topics and marketing collaterals. The criteria are that your firm
at the forefront of the audience’s minds as they calculated must (1) use a practice management or accounting
their next steps to future-proof their legal practices. software; (2) have an online KM subscription (such as
LawNet) and (3) have an online presence (whether a
Our other technology schemes which are still running can dedicated website or a listing with an online directory
certainly play that role to help you future-proof your legal including LawSoc’s). There is no deadline for this
practice: scheme.
1. Tech Start for Law – the Law Society is working For more information, please visit .
subscription fees for up to five users for three types
of solutions – practice management, knowledge 3. Capability Development Grant (“CDG”) by SPRING
management and online marketing tools. This scheme Singapore aims to support SMEs to scale up business
will run till 28 February 2018 on a first-come-first-served capabilities and ensure business sustainability. Your
basis. The applicant entity should be a Singapore law firm can undertake projects in areas like product
practice that satisfies the threshold requirements set development, human capital development and business
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Entities) Rules 2015. The firm should also fulfil the local model transformation. The grant defrays up to 70 per
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Singapore Law Gazette July 2017
News
CEO's Message
If you are interested in applying for any of the schemes or Partnership grant (“GCP”), Double Tax Deduction scheme
require further clarification, please contact lpi@lawsoc.org.sg. (“DTD”) and the Deal Hunter programme. At the same time,
the Law Society is looking into stepping up on mission trips
Internationalisation to selected countries for members to gain insight into the
legal system and business environment, as well as to build
With the slew of technology initiatives, the Singapore law up contacts. We will also organise country-focused CPD
firm is now ready for larger and more complex jobs. With seminars and actively marketing the “Singapore Lawyer”
more widespread endorsement of the use of Singapore brand. Coming up next month is a mission trip with the
law as the governing law of contracts and Singapore as a Singapore Business Federation (“SBF”) to Myanmar. If you
dispute-resolution venue whenever neutral law and venue would like to join us on the Myanmar trip or find out more
are required, Singapore law firms are well-placed to seize the about going international, please contact communications@
opportunities that come with this. The Law Society is working lawsoc.org.sg.
with Ministry of Law and IE Singapore to make it easier
for law firms to take advantage of the various government
grants and incentive schemes to internationalise. We hope
to help member firms navigate schemes like the International ► Delphine Loo Tan
Marketing Activities Programme (“iMAP”), the Market Chief Executive Officer
Readiness Assistance grant (“MRA”), the Global Company The Law Society of Singapore
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News
Bench & Bar Games
Malaysia-Singapore Bench & Bar Games 2017
“And do as adversaries do in law, strive mightily, but eat and drink as friends”
– The Taming of the Shrew, Act 1 Scene 1
The 48th edition of the annual Bench & Bar Games was We were 2–0 down
held in Singapore from 28 April to 30 April 2017. Although in the overall scoring
the journey ended by Singapore wresting back the Judges’ even before the
Cup from our Malaysian counterparts, the first steps Games were officially
towards redemption and reclamation (of the trophy not of declared open by the
the Tebrau Straits) were taken in Kuantan in 2016 where we respective Heads of
had to relinquish the Judge’s Cup to the Malaysians. Some Delegation. However,
amongst the Law Society of Singapore Sports Committee Judge of Appeal
feel that giving up the Judge’s Cup was actually harder than Chao Hick Tin rallied
trying to win it back in the first place. Having tasted victory Team Singapore to
in 2013 and 2015, our Sports Committee Chairperson, continue battling and
Lai “Diana Prince” Foong, was quietly confident that the never give up in the
Singapore team had a more than decent chance of winning remaining two days
the Judge’s Cup again this year. of competition in his
opening remarks at
However, at the end of the final committee meeting before the Reception. The
the Games began, she could only hope that Team Singapore rallying cry soon
will not be embarrassed too badly in their own backyard reverberated around Justice Chao Hick Tin triumphantly holding
given the bleak updates provided by the respective game Team Singapore up the Judge’s Cup
convenors. and our Darts
team responded
Day 1 – Optimism is the Faith that Leads to first by beating their counterparts with a score of 4–3.
Achievement Notwithstanding that darts was an exhibition sport (which
sadly meant that the point scored did not contribute to the
The Games began with the golfers converging at the Raffles overall points), it unleased the inner beast and fanned the
Country Club for a midday (what were they thinking?) tee- embers of the competitive spirit in the Singapore contingent.
off. There were a handful of new players but that did not
stop the golfers from greeting each other high fives as Day 2 – For There to be Light, There Must be
they greeted each other like old friends. The mood in the Darkness
Malaysian camp was relaxed as they, like Team Europe in
the Ryder Cup, have dominated this event for a number Day 2 began with victory by our cross-country runners
of years. However, one of the early updates was that Lai who conquered the slopes of Mount Faber to beat the
Foong and her playing partner, Joseph “Chris Pine” Liow Malaysians with a score of 207 to 215 (with the quirk in the
had won (by default) their flight as their counterparts did not scoring system, the team with the lower score after all the
show up. However, that was the only piece of good news registered runners had completed the course is declared
from Golf as the Malaysians continued their winning streak the winner). News of the runners’ victory came as the rest
by beating our team with a score of 707 to 677. of Team Singapore was getting out of bed on a Saturday
morning and wolfing down their hokkien mee at the Old
Whilst Team Singapore was still reeling from news of the Airport Road hawker centre (like the Singapore badminton
defeat on the fairways, we were dealt with another blow team ).
when our Hockey team was defeated by the Malaysians
with a score of 2–1. It was a case of experience and guile This was quickly followed by news that we had burst out of
triumphing over fitness and speed. the blocks and had taken a 1-0 lead, in the first to 7 points,
in the Tennis match held at the Keppel Club. The lead had
So it was with a heavy heart that Team Singapore gathered stretched to 3–0 before the Badminton players limbered up
at the Singapore Cricket Club for the Opening Reception. at the multi-purpose hall at the Singapore Swimming Club.
Singapore Law Gazette July 2017News
Bench & Bar Games
The badminton team was buoyed by the news that Ang Li their counterparts with a 7–1 win. Little did they know that
Peng, the proverbial thorn in Singapore’s side (and only the Argentina national team would engage the same 2-5-
just the former Commonwealth Games women’s doubles 3 formation when they put six past our national team a
gold medallist turned lawyer) was pregnant (and not by one couple of weeks ago. Pool, on the other hand, cued their
of our players if some rumours were to be believed) with way to a 4–4 draw. Overall score is now 6.5 to 5.5 in Team
her first child and did not make the trip down this year. The Singapore’s favour!
Bowling team was also quietly confident as a number of our
top keglers were available to bowl this year. They also eked Day 3 – Great is the Victory, but the Friendship of
out a 1--0 lead, in the first to 12 points, bowling competition. All is Greater
And our cricketers were “stumping” around at the Ceylon
Sports Club and had begun scoring runs at a steady rate. Day 3 began with our Chess players channelling their
inner Garry Kasparovs and Bobby Fischers by unleashing
However, as lunch beckoned, news trickled in that our the Sicillian Defence opening moves on their Malaysian
Table Tennis team had been humbled by their Malaysian counterparts which their opponents never really recovered
counterparts with a 5–0 score thus giving the overall from. Although Team Singapore outscored their opponents
advantage back to Malaysia. But we countered with a 5–0, the game was played in an exhibition setting and like
comprehensive 5–2 victory by our Tennis team. Overall Darts, the point could not count towards the overall score.
score 3–2 to the Malaysians. Game on! But Team Singapore
came a standstill with news that with the Badminton score All eyes were on Squash and Netball at this stage. And
finely balanced at 2–2, one of our men’s doubles players, both these teams delivered in style to deliver the knock-
Boon Yaw, had suffered an eye injury as a result of a smash out blow to the Malaysian challenge this year. Squash ran
directly (but inadvertently) into his face by the opposing out 4–1 winners with the courts at the Singapore Swimming
team. Play was halted for some time as Boon Yaw sought Club proving to be a good hunting ground for the team. In
medical attention. However, the former Commando, with what had to be the best supported match in the Games, our
one “working” eye left and a cramping right leg, fought Netball team emerged victorious with a score of 46–37.
on valiantly. For Honour and Glory, Team Singapore!
Unfortunately, the team came up short and lost 3–2 in what By this time, the Malaysians were playing for pride and
has been described by both convenors as the closest game they fought tooth and nail during Volleyball fixture where
between the two sides in the past decade. they emerged victorious with a 3–1 scoreline. However, the
Veteran’s Soccer provided the proverbial icing on the cake
Spurred on by the heroics of their badminton players, the by emerging victorious with a 2–0 win.
Malaysians eked out a 4–1 lead in bowling which they
stretched to 5–3.5 as the afternoon wore on. However, the Spirits from both camps were high when the participants
confidence of our keglers were not shaken at this temporary made their way to the Furama Riverfront Hotel. Finally,
setback. They dug deep and rolled off a number of the highlight of the Closing Dinner was upon us – the Boat
immaculate frames for a come-from-behind win with a final
score of 7–6. And in spite of our basketball players’ best
Some members of Team Singapore at the closing dinner
efforts to three-peat, they also had to overcome the loss
of their 3 pointer sharpshooter (who reputedly has a better
shooting average than Stephen Curry) through injury in the
middle of the game, they narrowly lost their match with a
score of 49–59. Our cricketers, on the other hand, bowled
the opposition over with victory by 7 wickets in 18.3 overs.
As the evening of the second day of competition approached,
Team Singapore had closed the overall score with three
sports where we have had some successes in the past
yet to be played i.e. Ladies Soccer, Premier Soccer and
Pool. These games did not disappoint. The ladies soccer
team scored 2 goals in the first half before switching to the
catenaccio system and shutting down their opponents in the
second half. They emerged victorious with a 2–0 final score.
The Premier Soccer team, on the other hand, overwhelmed
Singapore Law Gazette July 2017News
Bench & Bar Games
Race! Although the point did not count towards the overall Straits Law Practice LLC and Tan Rajah & Cheah; Silver
score, our drinkers were determined, yet again, not to be Sponsor Harry Elias Partnership LLP and Bronze Sponsor
out-drunked in their own backyard! #speedstersook gave WongPartnership LLP.
the team the lead which was not relinquished. In what must
be considered a new record time, Singapore came out At the end of the day, the injuries suffered and aching
victorious in the final “sporting” event of the Games. muscles will heal and become a distant memory. But the
friendships, camaraderie and good relations which were
After the last shot of tequila was downed and the final beat forged in the cauldron of competition during these special
of the 80’s inspired disco tune played, another successful games will forever be remembered and remain in our
edition of the Bench and Bar Games had come to pass. The hearts. It has been said, in the past, that it does not matter
Sports Committee of the Law Society of Singapore would on which side of the (reclaimed) Tebrau Straits the Judges
like to thank all Judges and members of the legal fraternity Cup reside. But it sure feels good that the Judges’ Cup is
who participated in the 2017 Bench and Bar Games. Special on our side again.
mention must also be made to the friends, family members
and supporters of our players who shouted themselves Muhamad Imaduddian Bin Abdul Karim
hoarse supporting our players at the respective games. We Attorney-General’s Chambers
would also like to record our thanks to all sponsors, including Member, Sports Committee
Gold Sponsors Allen & Gledhill LLP, Drew & Napier LLC, The Law Society of Singapore
Eugene Thuraisingam LLP, Rajah & Tann Singapore LLP,
Hockey
This year’s hockey match was a keenly contested event as Congratulations to the Malaysian hockey team on the
it has been in recent years. We are thankful for the weather victory and we look forward to another keenly contested
that held up despite worrying signs in the days leading up match next year.
to the match. In the end we matched the beautiful weather
with the beautiful game at Delta Hockey Stadium. We would like to thank all the supporters from both
Singapore and Malaysia for your presence at the match. It
Despite playing our best hockey in recent times, we is always a pleasure to play before a vocal crowd and we
succumbed to a 2-1 defeat at the hands of the Malaysians. could feel the passion on and off the field. We hope you
The Malaysians took an early lead which we managed to will continue supporting the teams and we hope to continue
neutralised only near the end of the match despite having entertaining you with some good hockey.
sufficient chances earlier. However, the experienced
Malaysians did not let our equaliser hold them back and Ravin Periasamy
dealt us a final blow in the final few minutes of the game. Senior Associate
Their forward Anil scored two goals on either side of Craig’s Dentons Rodyk & Davidson LLP
equaliser. Email: ravin.periasamy@dentons.com
Singapore Law Gazette July 2017News
Bench & Bar Games
After about 20 minutes of testing their defences, we finally
had a breakthrough. The Malaysians conceded yet another
corner from our attack. Karen took the corner and crossed
to Andrea at the near side of the box. Being the recognised
striker whom the Malaysians feared, their attention and
marking was focused on her. Andrea passed across the face
of the goal to Wan Yi, one of our newer players who had only
just been subbed in, and she had a simple tap in. 1-0!
This relaxed us but also spurred the Malaysians to attack
a little more. Just before halftime, they were awarded a
highly questionable freekick just outside the box at the right
corner. It did not appear to us that any foul or even contact
had been committed. This was their first freekick in our
Ladies’ Football half, and it was in a dangerous position. Our goalie called
for a 4-man wall at the near post. Their midfielder with the
crossing ability hit a sweet curving shot towards the far top
For only the second time in the history of this annual match, corner where the goalie was positioned. Thankfully it was
the Malaysians agreed to an 11-a-side game with offside at least a foot above the crossbar, but our goalie was in the
rules. Usually the ladies’ match is a shorter 9-a-side game. right place to tip it over in any case.
This year was also the first time the match was played at
night under the floodlights. We breathed easier with the miss, then the halftime whistle
went.
In our last home match in 2015, the Malaysians played a
very defensive game. We won by a single goal despite our When the second half started, the Malaysians were slightly
total dominance. This time, we were not sure what to expect more willing to attack. Their preferred channels were still the
as we had heard that they had revamped their team. We wings, but they found our defence holding firm. We were also
were however confident of our own strengths as we had a still pressing and attacking, and they had to be mindful of
core of experienced players fleshed out by newer players losing possession and facing swift counterattacks from our
with no small amount of skill. lightning fast strikers. The balance of attack and possession
was therefore still in our favour, and not surprisingly, our
When the match started, we could see they had many new second goal came about 10 minutes in from a quick turnover
faces, but their defence was still helmed by familiar faces. in midfield. Andrea received the ball and zipped towards
Singapore went straight into attack and Malaysia settled into goal with their defenders trailing desperately behind her.
a defensive mindset again. We had a formidable front line Their goalie came out to narrow the angle and Andrea only
and persistent attacking mids who pressed the Malaysians managed a weak shot straight at her. However, the goalie
in their half to keep up the pressure. Our pressing led fumbled her catch and the ball rebounded to Andrea who
some very good chances which we unfortunately either took full advantage of the second ball and buried it. 2-0!
shot straight at the keeper when clear on goal, or missed
the target. It was good to see the chances fall not just to While Singapore continued to press for a third, the
the older but also our newer players, who were finding the Malaysians finally got their second good chance of the
space and getting into positions to take a shot. match. A player stole a loose ball in midfield and charged
clear towards goal. There was only one or two Singapore
On the rare occasions that the Malaysians strayed beyond defenders close enough to get to her as she approached the
the halfway line, we noticed that they posed a slightly bigger box. Our goalie came forward a little to narrow angle and the
threat than they used to: they had fast and dangerous Malaysian player made the decision to take an early lobbed
wingers as well as one or two midfielders with the ability shot over the defenders before they reached her. However,
to hit long diagonal crosses to the wingers. Fortunately for her shot was weak and easily gathered by our goalie.
us, our defence and defensive mids were more than equal
to the task and cut off their forays before they got close to In the final minute, the Malaysians had a freekick a fair
the penalty box. I don’t think I – as the goalie – touched the distance from the box. However, with nothing to lose, it was
ball at all in the first half except to take perhaps one or two clear that their long ball specialist would take a punt at goal.
goalkicks. Our goalie called for a 2 man wall despite the distance, to
force the kicker to have to clear the wall if she wanted to
Singapore Law Gazette July 2017News
Bench & Bar Games
take the shortest route to goal. Sure enough, the shot came As in the past few years, a futsal pitch was booked for the
over the wall, and our goalie moved across goal to get in next day, so that the Singapore and Malaysia players could
its way. Due to a deflection out, the Malaysians had a final enjoy a few friendly games in a relaxed setting. Players
corner but that was easily cleared. Soon after, the referee were not split according to country and the results didn’t
blew for full time. matter.
Compliments must be given to Malaysia for stepping up Goal keeper,
their game and having some dangerous players. However, Hur Yuin
Singapore never felt in danger in this match and our intense
effort in pressing, concentration, determination and skill
deserved the victory.
Badminton
D-Day arrived and the morning couldn’t have started off any Our mixed doubles pairing of Lisa and Xijing commenced
better – perfect weather, a full strength squad, immaculate first. Traditionally, this has always been our cornerstone
courts and the Malaysian Commonwealth gold medallist not point, as we have been winning the mixed doubles match
in attendance. The stars were aligned for an extraordinary consistently over the last few years. We were quietly
upset. confident that this could be the match that would bring
home the trophy. It was a nail biting affair with both pairs
The games kicked off with our first men’s doubles of trading points evenly from the start. But alas, both sets tilted
Chunhan and Melvin taking on their experienced Malaysian in favour of the Malaysians, winning by the slightest margins
opponents. Despite a brave fight, they eventually bowed out of two points in each set.
in straight sets.
All eyes and hopes were on the final men’s doubles pairing
Next up, our ladies pairing of Sarah and Vanessa played of Boon Yaw and Zhirong. Singapore came racing out of the
tremendously to overcome their adversaries convincingly, blocks to take a commanding lead in the first set. The rest of
with a 2-0 win. the Singapore team, myself included, were already starting
to dream of the unthinkable.
Our second men’s doubles pairing of Daniel and Brandon
similarly overpowered their compatriots with a 2-0 victory. And then, as unexpected as Brexit or the US presidential
elections, Murphy stuck with his law. A freak accident. Near
The score was now a surprising Singapore 2–1 Malaysia. the end of the first set, with Singapore close to winning,
our player got struck in the eye (unintentionally) from close
This meant that we only needed one more point out of the range by the shuttle, which blinded him temporarily and
remaining two matches to clinch the long awaited title. eventually dislodged his contact lens.
Singapore Law Gazette July 2017News
Bench & Bar Games
The whole hall broke into silence as Boon Yaw collapsed to cover for his injured comrade, the remaining two sets
to the floor, clutching his face. Spectators crowded around beyond our reach. The final point was met with applause
him in anxious desperation. His right eye was bloodshot and admiration from supporters from both sides.
and tearing uncontrollably. Most ordinary men wouldn’t
have been able to see, not to mention continue the match. Final score: Singapore 2–3 Malaysia.
But not this ex-elite soldier. Boon Yaw got to his feet after
a lengthy break and requested to continue, to the surprise We may have lost the games for another year, but what we
of all and with much encouragement from our Singapore earned – respect – is priceless.
team. It was heart wrenching for all spectators to watch
Boon Yaw struggle around court with blurry vision, swinging Till Ipoh 2018!
his racket sporadically with the hope of hitting the shuttle.
Miraculously, we won the first set. But despite trying his Brandon Chung
valiant best and his partner Zhirong playing out of his skin Convenor, Badminton
Tennis
There are many similarities between sport and war, but she who the Romans call Victoria. And Victoria, as we
sport is more serious. But unlike war, sport is civilised know, has a secret – no, not that one about her once being
combat (which does not explain why some regard golf as Victor – but that she takes a personal interest in the tennis
a sport). And the spirit of fairness underpins sport whereas fortunes of young Gavin Neo. Gavin the foil to Achilles Chen
it makes only rare appearances in war. Even in the days of ran wild in the first set, winning it 6-1. Then, as Achilles’
Imperial Rome when sport meant fights to the death in the famed ankle throbbed, Gavin’s knee started to wobble. The
arena, fairness was paramount. A man with a sword against pair struggled to reach 5-5 in the second set when Nike/
an unarmed lion. Can it be any fairer than that? Victoria intervened. ‘Wounded Knee’ and Achilles galloped
to a 6-1, 7-5 victory over Derrick and Sargie.
Hosting this year’s Bench & Bar Games, the tennis section
planned to have the matches played at the Winchester The Malaysians clearly remembered our Juthika who, with
Tennis Academy with three covered courts, but in the end, her equally speedy partner, took out their fearsome pair of
the venue was changed to the Singapore Swimming Club, Vijaya and Issyam last year. Who could have forgotten that
under the open skies so that the Olympian gods might match? Vijaya did not join the team this year. Issyam went
observe the proceedings and intervene as they did in to the men’s third pair to intimidate our aging pair of Paul
mythical times, which according to the Malaysians were the and Leslie – more later. So the Malaysians sent a pair of
22 years and 18 times that Singapore had beaten them in debutants to challenge our ‘Hippolyta’and ‘Hercules’, and
tennis. Singapore won 6-1, 6-2.
True enough, Zeus kept watch (it was said) over the Buoyed by their near-victory in the veterans match last year,
Singapore team, and so did Nike, the Goddess of Victory, this year, the Malaysian pair of James and Kiat Siang strode
Singapore Law Gazette July 2017News
Bench & Bar Games
purposefully into court, expecting the Singapore veterans to alas, the thunderbolt god was watching the ladies. K & M
be predictable but older. They were partially correct. They thus went down 1-6, 4-6 but with a display that promises
did not predict that Singapore would call upon an old Davis redemption.
Cup player from the days when even Zeus himself was old.
The much improved Malaysian pair huffed and puffed and The men’s third and fourth pairs began their titanic battle
finally blew themselves off the court, losing 4-6, 5-7. on either side of Souren’s court. Singapore’s Paul and
Leslie took on Denning and Issyam, and Chris and XT of
The Malaysians again hoped to win the ladies tie that they Singapore took on Jason and his Argonaut, Kiat. And with
felt they were unfortunate not to win last year had their Zeus still celebrating elsewhere, Hades weakened the wrist
player not been overcome by cramps. They sent a new and gradually, the mind, of Chris and XT and they fell to
player full of energy and promise, hoping to grind out the Jason and his Naut.
older Singapore pair. But Zeus smiled upon Li Suan and
Grace of Singapore. The Malaysians lost the 1st set 4-6. The Malaysians would have won the men’s third – they
The Malaysians then took a toilet break, as they did last should have won it – though they lost the first set 5-7,
year. Returning refreshed, they hit the ball as hard as they but won the second 6-0, and were younger and fitter, and
could. And as the last few points of the 2nd set were being started well in the deciding third set and when the score was
played the Malaysian ladies aimed the ball at every corner at 5-5 in the third set, Nike did her stuff again. It was over
of the court; they smashed hard, lobbed high and dropped before anyone realised what had happened save that the
low. And each time the ball found its way back to them. They match went to Singapore 7-5.
duly surrendered those points, and with them, the set and
match. 6-4, 6-3 to Singapore. Overall, the matches were full of fun and excitement,
great skill and strength displayed all-round. That evening,
The story was really over by this stage, but the men’s friendship renewed, the Singapore team treated the
second, third, and fourth ties continued like fights to the Malaysians to a feast at the New Ubin Seafood Restaurant,
death, possibly because the Malaysians did not know that not without coincidence, run by a former Vice President of
the cause had been lost. In battle, they too, were not without the then Singapore Lawn Tennis Association. It was said
friends from Olympus. Hades of the Underworld, watched too, that Bacchus, the God of Wine was present, delivering
over them, and like his charges, was beaten but unbowed. 20 bottles of his juice.
He sprayed his magic cloud over the Malaysian Souren and
Toi, who proved too much for Keith and Marcus. K & M might The Watcher
have done better had Zeus been there to thwart Hades, but
defeats in the past three annual encounters, the Singapore
team started off well with a 26-24 win in the first set. The
Malaysian team closed out the second set comfortably with
a 25-15 win. The Singapore team was doing well in the third
set when game play was stopped due to an alleged rotation
error called out by the First Referee. Some confusion
ensued with the Singapore players insisting that they were
not out of rotation which found support with the Second
Referee. Play resumed after two minutes by which time
some momentum was lost and the Singapore team lost out
on the third set 23-25.
The team started out strong on the fourth set, and at one
Volleyball time led 8-6. At the mid-point of the fourth set, the score
stood at 16-16. Three successive errors then saw the
Malaysians pulled away to 19-16 and despite the Singapore
The Law Society Volleyball team this year saw an infusion of team drawing close to 22-24, the fourth and final set saw
new team members, namely Ajit Singh and Kong Xie Shern. the Malaysians closing out the Singapore team on a score
The Volleyball team had been training with its external coach of 25-22.
in the months leading up to the encounter. Eager to put up
a good showing following successive but closely contested Liow Wang Wu, Joseph
Convenor, Volleyball
Singapore Law Gazette July 2017Feature
The Celebrity Halo Effect and Passing Off
We see celebrities today in advertising campaigns for everything from luxury
handbags to air purifiers. But can we get away with borrowing their fame without
paying a fee?
The fact is – celebrity sells. We see famous faces everywhere celebrity may claim no special achievements other than the
– on billboards, on television, on public transport, on social attraction of public attention” and “celebrities in the twenty-
media, in the newspapers and magazines. Why would top first century excite a level of public interest that seems …
luxury brands like Louis Vuitton, Dolce & Gabbana and disproportionate”.5
Versace pay Madonna to front their advertising campaigns?
Why would Jura appoint Roger Federer to be their global The Legal Framework – Commercial
brand ambassador? Why would Novita engage singer Kit Appropriation of Fame
Chan to endorse air sterilisers? Would fans of Cristiano
Ronaldo and Beyoncé eat KFC or drink Pepsi because their The right of publicity, broadly defined as the “inherent right
idols are the spokesperson for these brands? of every human being to control the commercial use of his
or her identity”,6 has been well-established in the United
The Halo Effect States (US) for over sixty years under various state laws.7 It
ensures that the right to control the commercial exploitation
Using a celebrity in advertising, product merchandising of an individual’s fame or public notoriety belongs to the
and other commercial contexts is likely to have a positive individual with whom it is identified. It is a curious creature.
effect on consumers’ brand perceptions and purchasing It is not a trademark right, but it protects the associative
decisions; this is commonly referred to as the “positive halo value that celebrities bring to products and services. It does
effect” within branding and marketing research.1 In buying a not require one to prove a likelihood of confusion, but it
product associated with a celebrity, the consumer can buy requires a proof of fame. It exists not for the furtherance of
into some of the glamour, self-indulgence and decadence the interests of consumers or for the progress of the arts
of the charmed life of a movie star or into the athleticism and sciences, but for the benefit of the famous individual.
and success of a sporting icon. Paul McDonald similarly It has been called the “right to manage fame”.8 Generally
recognises that the celebrities function as “shortcuts” for the perceived to be a property right akin to an intangible or
companies to give their products distinctive identities.2 Such intellectual property right,9 the right of publicity has been
symbolic celebrity images attempt to create an association invoked mainly by celebrities in the US to monetise their
between the products offered and the ideologically identity and to prevent unauthorised commercial uses of
desirable traits in order to produce the impression that if various aspects of their persona.
one wants to be a certain type of person, then one should
buy the particular product.3 Celebrities today have access Outside the US, the common law passing off action is the
to numerous lucrative opportunities to commercially exploit claim relied upon by celebrities in common law jurisdictions,
their fame through myriad channels such as advertising, such as the United Kingdom (UK), Australia, Hong Kong
endorsements and merchandising. At the same time, and Singapore, which do not recognise a right of publicity,
companies that are hoping for a free ride are devising to protect themselves against the commercial appropriation
innovative means of referencing the celebrity persona of their fame. Although the right of publicity and passing
without having to pay a substantial licensing fee. off claims share a basic similarity in that both protect the
valuable commercial goodwill that inheres in a famous
Fame in a new media age is markedly different from traditional individual’s persona, the elements of the two causes of
fame defined by one’s distinguished achievements. What action are fundamentally different.
characterises “fame” is simply a heightened visibility in
the public consciousness.4 The contemporary celebrity The recognition of a proprietary interest in the identity of
does not have to be an individual of outstanding abilities a well-known individual in right of publicity doctrine is
in the fields of sports, music or movies. Fame in the 21st analogous to the recognition of a proprietary interest in
century is very different from traditional fame defined by goodwill or reputation of the celebrity in a common law
one’s distinguished achievements. Referring to the public passing off claim. Both actions acknowledge that the law
obsession with the life of Kim Kardashian, cultural studies should protect the commercial interests of these individuals
scholar Graeme Turner astutely observes that “the modern and prevent unlawful profiting. However, it is established
Singapore Law Gazette July 2017Feature
law that a US right of publicity claim does not require or misleading/deceptive conduct is considered to be central
any evidence that a consumer is likely to be confused as to the tort.20 However, the misrepresentation must relate to
to the plaintiff’s association with or endorsement of the the plaintiff’s goodwill and harm it in some way, and “mere
defendant’s use. Therefore it appears more expansive misrepresentation/confusion alone is not sufficient”.21 The
in its protection against an unauthorised use of identity elements of the passing off action in Singapore, the UK
compared to a common law passing off claim. Celebrities and Australia follow the position set out by the House of
in Commonwealth common law jurisdictions will generally Lords in Reckitt & Colman Products Ltd v Borden Inc22 in
have to rely on the action of passing off and equivalent that there are three key elements of goodwill or valuable
statutory claims if their identities have been used without reputation, misrepresentation or deceptive conduct and
their consent in advertising or trade as the right of publicity damage (known as the “classic trinity”).23
is not recognised in these jurisdictions.10
Over the last two decades, the courts have increasingly
The view in a number of common law jurisdictions like the recognised that it is a prevalent commercial practice
UK and Australia is that there is no actionable proprietary “whereby, to gain a competitive advantage, goods and
right in one’s identity equivalent to the right of publicity in services are marketed to the public by associating
the US,11 and while there had been no case litigated in them with a well-known personality, real or fictitious …
Singapore to date, it is unlikely that Singapore courts will who has developed an identifiable reputation among
deviate from this approach. The classic common law tort potential purchasers … [thus appearing] more desirable
of passing off was originally intended to protect against to consumers.”24 However, although it has been noted
rival traders in the same field of business “passing off” that “passing off has been expanded further by Australian
their products as the products of another competitor courts than most other countries … in keeping with the
(“trading goodwill”), with its rationale being the prevention corresponding development in the practice of character
of commercial dishonesty.12 Subsequently, passing off has merchandising”,25 the courts there, as well as in the UK,
broadened to protect goodwill “not in its classic form of a have consistently rejected the recognition of a general tort
trader representing his goods as the goods of somebody of unfair competition.26
else, but in an extended form.”13 In the UK, it appears settled
law that the extended action of passing off today does not It is generally accepted that consumers are often
require the plaintiff to prove a common field of activity;14 and influenced in their choice of products because of a
it appears that the passing off action is capable of protecting perceived association between those products and a
the goodwill or valuable reputation of a person/business celebrity personality. As an Australian federal court judge
against any unauthorised claim of association or connection remarked, the use of celebrities in advertising seeks to
by another (“promotional goodwill”).15 In 2015, the English “foster favourable inclination towards [the product], a good
Court of Appeal unequivocally recognised the passing off feeling about it, an emotional attachment to it” such that
action as the appropriate cause of action for celebrities the product is “better in [the] eyes” of consumers than a
wishing to seek a remedy for a commercial appropriation comparable product without such an association.27 The
of their fame: “the proposition that a famous personality has typical celebrity claims made in passing off actions are that
no right to control the use of her image in general does not the use of name, likeness, voice or other indicia of identity
lead inexorably to the conclusion that the use of a particular mislead a significant proportion of consumers by implying:
image cannot give rise to the mistaken belief by consumers (i) that the celebrity approved of the advertiser/trader or
that the goods to which it is applied have been authorised.”16 its product; (ii) that the celebrity consented to the use of
This position resonates with the Australian cases.17 his/her identity by the advertiser/trader; or (iii) that there is
some connection or association between the celebrity
Passing Off and the advertiser/trader (impressionistic association).
The passing off action does not recognise a proprietary Over the last decade, there have been relatively few
interest per se in a name, likeness or other indicia of passing off claims by celebrities in the UK or Australia,
identity,18 but it protects goodwill as “the attractive force compared to the flourish of right of publicity litigation in the
which brings in custom”19 by preventing a trader from gaining US. There were none in Singapore. Interestingly in two local
an unfair competitive advantage through associating itself decisions involving the unauthorised use of photographs
or its products with a well-known personality. In order for a of politician Chiam See Tong and fashion model Hanis
celebrity to obtain legal recourse for interference with his or Hussey by a restaurant and escort agency respectively, the
her goodwill, the claimant must prove all the elements of the actions were successfully brought in defamation; passing
passing off tort. Despite there being no generally accepted off was not alleged.28 The most high profile English cases
definition of passing off, the element of misrepresentation arguably are: (a) Formula One driver Eddie Irvine’s claim
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