GBA Template
BUS205 Company and Tort Law
Group-based Assignment July 2020 Presentation
BUS205 Group-based Assignment
GROUP-BASED ASSIGNMENT
This assignment is worth 20% of the final mark for BUS205 Company and Tort Law.
The cut-off date for this assignment is 6 October 2020, 2355 hrs.
This is a group-based assignment. You should form a group of 4 members from your seminar group. Each group is required to upload a single report via your respective seminar group site in Canvas. Please elect a group leader. The responsibility of the group leader is to upload the report on behalf of the group.
It is important for each group member to contribute substantially to the final submitted work. All group members are equally responsible for the entire submitted assignment. If you feel that the work distribution is inequitable to either yourself or your group mates, please highlight this to your instructor as soon as possible. Your instructor will then investigate and decide on any action that needs to be taken. It is not necessary for all group members to be awarded the same mark.
The total length of the report should be no more than 9 pages with font as Times New Roman, size 12, 1.5 spacing and a 2.54 cm margin all round (excluding cover page, table of contents and/or references). All pages should be numbered.
In this assignment, you are expected to:
- Conduct extra research beyond the scope of the textbook, iStudyGuide and any other course materials provided by the university.
- Apply legal principles to new situations to determine the most appropriate judgement.
- Develop the essential knowledge and interpersonal skills to work effectively in a team.
Demonstrate well developed written proficiency Note to Students: You are to include the following particulars in your submission: Course Code, Title of the GBA, SUSS PI No., Your Name, and Submission Date. Important Note: Grading of GBA Submissions Marks awarded to your assignment are based on the following guidelines:
1. 80% of the marks are allocated to the content of your answers:
The marks awarded to what your answers cover depend on the extent to which they cover the key points that correctly and comprehensively address each question.
The key points should be supported by evidence drawn from course materials and, wherever relevant, from other credible sources.
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BUS205 Group-based Assignment
2. 20% of the marks are allocated to the presentation of your answers:
Wherever applicable, the marks awarded to how your answers are presented depend on the extent to which your answers:
- form a sound reasoning by developing those key points in a clear, logical and succinct manner;
- provide proper and adequate in-text citations and referencing to content drawn from course materials and other credible sources;
- strictly follow APA formatting and style guidelines1, in particular for:
- in-text citations and end-of-report references;
- the identification of figures and tables;
- use, wherever relevant, the specialised vocabulary and terminology commonly used in discussions about the topic(s) covered by each question;
- provide a reference or bibliography at the end of the main report;
- include the less relevant details in an Appendix;
- use sentence constructions that are grammatically and syntactically correct;
- are free from spelling mistakes;
- present the workings, numerical formulations and results in a logical manner that follows the APA formatting and style guidelines;
- design and present graphs, diagrams and plots that follow the APA formatting and style guidelines;
- are highly original;
- have proper formatting, which may:
- include a properly formatted cover page;
- respect the answer length/word count set out in the assignment guidelines, if any is prescribed;
- present answers in paragraphs with proper spacing and page margins;
- include page numbers and appendices, if necessary.
1 You can find a short tutorial on the APA formatting and style guidelines here: https://is.gd/mgEOnC . Additional details (pertaining to tables and figures) can be found here: https://is.gd/O4vDdT .
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BUS205 Group-based Assignment
Question 1
Austin and Benson incorporated SunFabric Pte Ltd (“SunFabric”) in 2010, whose core business is in the production and distribution of cotton and polyester textile. The shares in SunFabric are currently owned by Austin (60%) and Benson (40%). Austin has about 10 years of experience in the textile industry. Austin is an executive director, while Benson is a non- executive director. Coco, who was a director of SunFabric since its incorporation, had left SunFabric in 2019 and cited personal reasons for leaving.
In June 2019, in an attempt to increase SunFabric’s market competitiveness, Austin invested heavily in the setting-up of an e-commerce platform for selling SunFabric’s textile products. Austin had made the investment after hearing from his friends that selling textile online was gaining popularity in Singapore. He sought assistance from an intern whom he had asked to do some research on the feasibility of selling textile online. After viewing the report prepared by his intern, Austin decided to invest in the online business. Austin did not seek Benson’s opinion on this as he felt confident with his strategy. Unfortunately, the new online business failed within months, resulting in SunFabric losing huge amount of monies.
Two months after Coco’s departure from SunFabric, in September 2019, it was discovered that Coco has set up a new company, MegaFabric Pte Ltd (“MegaFabric”), which is also in the business of textile manufacturing but specialising in producing polyester-blended fabric for industrial workwear. MegaFabric is now working with one of SunFabric’s former suppliers, Innova Pte Ltd (“Innova”), in developing an innovative new fabric from recycled plastics. Innova had previously discussed this project with SunFabric in June 2018 (all the directors of SunFabric including Coco were present at the meetings pertaining to this project) but the directors were persuaded by Coco that this would be a distraction from SunFabric’s core business and so decided not to pursue the project further. It now appears that Coco has commenced work on the project with Innova shortly after her departure from SunFabric. Industry rumours suggest that the project is likely to be very profitable.
Benson is also a major shareholder of RetailCo Pte Ltd (“RetailCo”), a major long-standing customer of SunFabric. RetailCo had been purchasing textile products from SunFabric on credit terms, with payment usually due after three months upon the issuance of an invoice. Benson’s involvement in RetailCo was never made known to SunFabric. As a result of its failed online business, SunFabric suffered a financial crisis in early 2020 and it was agreed in February 2020 that RetailCo would pay off its outstanding balance owed to SunFabric and also advance a loan of $20,000 to SunFabric on the security of a floating charge on SunFabric’s inventories. The loan was intended to help SunFabric tide over its financial difficulties. RetailCo settled its outstanding balance and advanced the money to SunFabric on 31 March 2020. On the same date, the debenture containing the charge was executed. The charge was registered within 30 days of its creation.
Due to SunFabric’s financial difficulties, SupplierCo Pte Ltd (“SupplierCo”), a major supplier of SunFabric, in March 2020, refused to make further deliveries to SunFabric on credit since it was already owed $10,000 for previous deliveries. Following talks between Austin and SupplierCo, SupplierCo agreed to continue to supply to SunFabric on the condition that SunFabric created in its favour a fixed charge over its factory equipment to cover the existing debt of $10,000. The charge was created in April 2020 and registered within 30 days.
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BUS205 Group-based Assignment
SunFabric’s business continued to go downhill, largely attributable to its decline in market competitiveness. In June 2020, SunFabric went into winding-up.
- (a) Explain whether Austin, Benson and Coco have breached any directors’ duties owed to SunFabric as a result of the above actions. You may discuss each director’s conduct separately, i.e. discuss Austin, Benson and Coco’s conduct in separate sections. (40 marks)
- (b) Comment on the validity of the charges created in favour of RetailCo and SupplierCo. In your answer, you should apply the relevant case law and/or relevant statutory
provisions in the Companies Act (Cap. 50).
Question 2
(20 marks)
This article was published by the Intellectual Property Office of Singapore (“IPOS”) on 19 December 2019.
Case Summary: In the matter of a trade mark application by Ferrero S.p.A. [2019] SGIPOS 19
Registered trade marks are potentially valuable property rights for their proprietors. However, if granted too freely, they can also be obstacles to legitimate competition. The Trade Marks Act therefore seeks to maintain a proper balance. This case deals with an application by Ferrero S.p.A. (the “Applicant”) to protect the following mark:
(the “Application Mark”) in Singapore on 23 December 2013 in respect of “Pastry and confectionery, pralines, stuffed wafer, chocolate and chocolate-based products, ices.”
One of the grounds for refusing to register a trade mark relates to the failure of the applied-for mark to fulfil the essential function of a registered trade mark, which is to indicate the trade origin of the goods and/or services for which it is registered. It is in the public interest that the Register be kept free of trade marks that do not function as indicators of trade origin.
In general, the shape and packaging of products can be functional, attractive to look at, out of the ordinary or just plain. Rarely, however, will that shape and packaging in themselves and without education of the relevant public be inherently distinctive as an indication of the trade origin of the product. For the latter, the consumer will normally look to, rely on and ask for the word or logo on the product. Nevertheless, through extensive advertising, promotion and sale
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BUS205 Group-based Assignment
of products bearing a distinctive trade mark such as a word, that shape and packaging may sometimes become recognised even without that word mark.
The primary focus of the decision was whether the Application Mark had in fact acquired a distinctive character as a result of the use made of it. The distinctive character that must be present is not just any distinctiveness, such as might result from an “unusual, new or visually distinctive” shape (as affirmed by the Court of Appeal in Société des Produits Nestlé v Petra Foods Ltd [2017] 1 SLR 35 at [33]). For trade mark registration purposes, it is only sufficient where distinctive character as an indication of origin is conveyed by the appearance of the mark in itself. If the Application Mark had indeed acquired distinctiveness as a result of the use made of it, then the objection that it was devoid of any distinctive character could be waived.
What is clear from the Applicant’s evidence is that there have been very extensive sales to and in Singapore of FERRERO ROCHER chocolate products, although such evidence also shows that the overwhelming majority of such sales were in boxes that featured prominently the word mark “FERRERO ROCHER” on the outside as well as on each of the individually-wrapped pralines. In all of the promotional / point of sale material where a product can be discerned, the brand FERRERO ROCHER is prominently featured.
The IP Adjudicator observed that the Application Mark was a composite mark in which there is added to that shape and colour: first, a brown pleated paper cup that serves the function of preventing the ball-shaped chocolates from rolling around in the box they are sold in and; second, an oval white sticker (on which the word mark “FERRERO ROCHER” is printed when the Application Mark is used in practice).
These additions achieve, in the words used by the Applicant, a “coordinated package design”. Despite this, it cannot be correct to permit registration for chocolate products of a mark whose main feature is a gold spherical ball shape merely because the Application Mark combines with that shape and colour these other features: a brown pleated paper cup with two gold stripes around it and a white oval sticker. None of these features adds anything to the trade mark distinctiveness of the Application Mark as a whole because the average consumer would view them as merely functional or decorative elements.
The Applicant also had a survey conducted, in which 400 people in 24 locations around Singapore were asked “Do you know this product?” when shown a picture of the Application Mark. The IP Adjudicator considered that the survey results fail to show that the Application Mark functions as an indication of trade origin absent the distinctive word mark FERRERO ROCHER. Recognition and association are not sufficient, there must be shown to be distinctiveness of the Application Mark as a trade mark on its own. The IP Adjudicator therefore maintained the objection that the Application Mark is devoid of any distinctive character and could not be protected in Singapore.
The above article was retrieved from: https://www.ipos.gov.sg/docs/default-source/resources- library/hearings-and-mediation/legal-decisions/2019/in-the-matter-of-a-trade-mark- application-by-ferrero-2019-sgipos-19—ipos-case-summary.pdf
Read the article above and answer the questions below. You are required to conduct extra research for this question. You may refer to, among other resources, the full decision issued by the IPOS:
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BUS205 Group-based Assignment
https://www.ipos.gov.sg/docs/default-source/resources-library/hearings-and-mediation/legal- decisions/2019/in-the-matter-of-a-trade-mark-application-by-ferrero-2019-sgipos-19.pdf
(a) What features of its product did Ferrero S.p.A. (“Ferrero”) attempt to register as a trade mark? What are the advantages for Ferrero S.p.A. to register the Application Mark as a
trade mark?
(10 marks)
(b) Discuss whether the Application Mark meets the definition of a “trade mark” under the Trade Marks Act (Cap. 332). Explain the grounds which the IPOS had used in refusing
the registration of the Application Mark as a trade mark.
(15 marks)
(c) Express your view on whether there are any other alternative intellectual property rights which Ferrero could have applied to protect the features of its product as specified in the
Application Mark.
(15 marks)
—- END OF ASSIGNMENT —-
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