In Louis Vuitton Malletier v Ng Hoe Seng (formerly trading as EMCASE SG) [2026] SGCA 22, the Singapore Court of Appeal held that the statutory damages limits for trade mark infringement involving counterfeit marks apply per type of goods and per action, not per counterfeit mark. Such damages are compensatory and deterrent, not punitive, and must reasonably correspond to the claimant’s loss or the defendant’s benefit. The Court of Appeal also provided guidance on the factors to be considered in determining quantum and increased Louis Vuitton’s (“LV”) award from S$200,000 to S$510,000.

Statutory Framework in Singapore

 For infringement involving a counterfeit trade mark, section 31(5) of the Trade Marks Act 1998 permits a claimant to elect statutory damages “not exceeding S$100,000 for each type of goods or service” and not exceeding S$1 million in aggregate, unless actual loss exceeding S$1 million is proved. Under section 31(6), the Court is to have regard to the flagrancy of infringement, the claimant’s actual or likely loss, the defendant’s benefit, deterrence and all other relevant matters.

Background and High Court Decision

LV owns 13 registered trade marks in Singapore. The respondent sold nine types of goods bearing signs identical to those marks through Instagram, with some goods bearing multiple counterfeit marks. Some listings claimed that the goods used authentic vintage LV materials verified by a third-party authenticator, but trap purchases showed that at least two did not. After receiving a cease-and-desist letter, the respondent moved to another Instagram account. He did not participate in the High Court proceedings, where LV obtained default judgment and an injunction, but continued infringing and made his account private.

The High Court found at least 121 instances of infringement involving counterfeit marks. LV argued that both statutory limits applied per mark, resulting in a S$2.9 million limit and an aggregate limit of S$13 million. The Judge rejected that interpretation, holding that the maximum was S$900,000 (S$100,000 for each of the nine types of goods, subject to the S$1 million aggregate limit per action). He awarded S$200,000 without explaining how the sum was calculated.

Court of Appeal Decision

On appeal, LV maintained that the statutory limits applied per mark and sought S$1.45 million (which amounted to an award of S$50,000 per counterfeit mark per type of goods). Alternatively, if that interpretation was rejected, it sought S$675,000 in statutory damages.

The Court of Appeal upheld the Judge’s interpretation, holding that the wording of section 31(5)(c) supported applying the limits per type of goods and per action. It emphasised that statutory damages are compensatory and deterrent, not punitive, and must reasonably approximate the claimant’s loss or the defendant’s benefit. Applying LV’s per mark interpretation could produce damages substantially exceeding both measures and therefore have a punitive effect.

In assessing the quantum, the Court of Appeal provided guidance on the scope and application of the different factors in section 31(6):

• Flagrancy may be assessed by the number of counterfeit marks and types of goods, the scope of the defendant’s operations (whether as retailer, manufacturer, importer or distributor), and the manner of advertising. Aggravating conduct includes using the claimant’s name to promote counterfeit goods, representing them as authentic and disseminating false claims online.
• In assessing the claimant’s loss, the Court should consider whether the parties’ businesses compete directly. Lost sales may be limited where a substantial price disparity means buyers likely know that the goods are counterfeit. However, damage may also arise from harm to exclusivity, reputation and goodwill.
• The defendant’s benefit may be measured by comparing the profit margins on counterfeit goods with those on unbranded alternatives. The advantage gained by free-riding on the quality associated with the registered marks is also relevant.
• There were two aspects to deterrence. General deterrence may reflect the prevalence of counterfeit luxury goods and the ease of online infringement. Specific deterrence depends on the defendant’s conduct, including recalcitrance, evasiveness, non-cooperation with proceedings and continued infringement despite court orders.

Given the statutory limit of S$100,000 for each type of goods, the Court of Appeal held that damages should be assessed under section 31(6) separately for each of the nine types of goods.

On the facts, the Court of Appeal found the infringement highly flagrant and considered both general and specific deterrence necessary. The respondent was evasive, uncooperative and recalcitrant, and continued infringing in breach of the injunction. Only the limited scale of his operations militated against a higher award. Damages should therefore provisionally exceed the S$50,000 mid-point for each type of goods, subject to adjustments for category-specific factors. The Court of Appeal grouped the nine types into four categories based on sales or advertising volume, price disparity, and whether LV sold the same goods. The awards ranged from S$30,000 for cigarette cases (where there was one documented infringement and no evidence that LV sells such goods) to S$70,000 for phone cases, key cases and pouches/purses (which LV sold and for which there was extensive use of counterfeit marks, numerous documented infringements and high profit margins). The total award was S$510,000.