Salvation Army loses fight to Cat Army

The Hong Kong Court of Appeal has upheld a first instance judge's refusal to grant summary judgment to the Salvation Army in its passing off action against the Hong Kong Cat Salvation Army. The court found that the examples of confusion supporting the application were either not significant enough or required further examination at trial (Civil Appeal Case 288 of 2003, June 18 2004).

The Salvation Army, a renowned international evangelical and charity organization, brought a passing off action against the Hong Kong Cat Salvation Army for its use of the name Salvation Army in its English and Chinese names. The Salvation Army has never been involved with cat welfare and the Cat Army does not provide the kind of services offered by the Salvation Army.

The Salvation Army supported its application for summary judgment with three examples of confusion:

• In early 2000 a listener of a phone-in radio programme told the hostess that the Cat Army was part of the Salvation Army. The hostess telephoned the Salvation Army for clarification.
  
  
• In December 2000 a local Chinese newspaper reported the story of a cat found in a parking lot and then adopted through the services of the Cat Army. The article included a statement attributed to a person-in-charge at the Salvation Army.
  
  
• In March 2003 the City University Final Year Project Group sent an email to the university staff and students saying that "on behalf of the Hong Kong Salvation Army" they would hold an event named the School Cat Adoption Day. The group also offered to sell cat-related souvenirs to raise funds to "help [the Cat Army] promote cat adoption and help care for stray cats".

The first instance judge rejected the application for summary judgment and the Salvation Army appealed, claiming that the confusion led members of the public to give the Cat Army donations intended for the Salvation Army.

The Court of Appeal dismissed the appeal. It supported the first instance judge's view that the three examples of confusion were not "safe enough" to grant summary judgment. The Court of Appeal stated that since questions involving passing off are in general questions of fact to be determined by the judge who hears the case, the Court of Appeal should not interfere unless it is shown that the first instance judge was wrong. The Court of Appeal also shared the judge's view that the mere similarities between the parties' names in both Chinese and English will not inevitably lead to confusion. The court pointed out that the Cat Army's Chinese name includes characters meaning 'love cat', which stand out and show a significant difference from the Salvation Army's name.

In analyzing the instances of confusion, the Court of Appeal agreed with the judge's (i) finding that the first case contained multiple hearsay, and (ii) inference that the Salvation Army had not found it significant enough to take immediate action - it waited until 2001 to do so, even though it had had knowledge of the incident since early 2000. The court did not find it wrong for the judge to consider tentatively that the two other instances might have been caused by mere carelessness or errors in typing and editing. It concluded that it would be unsafe to rely on these reports without hearing the evidence and subjecting it to cross-examination at trial.

Lastly, the court considered that there was a triable issue on misrepresentation in light of the Cat Army's affidavit evidence that it was not aware of any instance of confusion regarding donations received by it.

Accordingly, the appeal was dismissed.

Kenny KS Wong, Johnson Stokes & Master, Hong Kong