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Trade Marks Journal No. 013/2012 Page No. lxxvii (ii) In relation to the preparation, drawing and filing of the evidence, the Registrar will take into account: (a) the complexity of the evidence filed (b) the amount and relevance of the evidence filed (c) the number of deponents involved (iii) In relation to the preparation of all types of hearings, the Registrar will take into account: (a) the number of grounds raised (b) the complexity of issues of fact and law (c) the length of written submissions (if any) (d) the amount and relevance of authorities cited (if any) (e) the number of witnesses taking the stand (if any) (iv) In relation to the attendance of all types of hearings, the Registrar will take into account: (a) the complexity of issues of fact and law (b) the time taken for the hearing (c) the number of witnesses taking the stand (if any) (v) In relation to the general and travelling expenses incurred by witnesses, the Registrar will take into account: (a) the complexity of issues of fact (b) the time taken for the witness' attendance B. SECURITY FOR COSTS (This section of the circular updates and replaces HMD Circular No. 1/2009 on Applications for Security for Costs.) Section 70 of the Trade Marks Act (Cap 332) 2005 Rev Ed provides: If a person who neither resides nor carries on business in Singapore — (a) gives notice of opposition under section 13; or (b) applies to the Registrar under section 22 or 23 for the registration of a trade mark to be revoked or to be declared invalid, as the case may be, the Registrar may require the person to give security for the costs for the proceedings and may, if security is not given, dismiss the proceedings. [Emphasis added] It is clear from the above that there can be 2 stages involved in proceedings related to security for costs. At the first stage, the Registrar has the discretion whether to require one party to give security upon the fulfillment of the criteria. At the second stage, where security is not given, again the Registrar has the discretion whether to dismiss the proceedings. In general, the Registrar will exercise her discretion as a 2-stage process. I. Application for Security for Costs A) Whether to Grant Security for Costs
Trade Marks Journal No. 013/2012 Page No. lxxviii Condition Precedent It is only if the Initiating Party 1 neither resides nor carries on business in Singapore that the Registrar has a discretion to require him to provide security for costs of the opposition or revocation or declaration of invalidity proceedings. Thus, the party seeking security for costs must first show that the Initiating Party neither resides nor carries on business in Singapore. Registrar’s Discretion Once it has been shown that the Initiating Party neither resides nor carries on business in Singapore, the Registrar then has a discretion to require the Initiating Party to provide security for costs. The word “may” makes it clear that security cannot be ordered as a matter of course, but only if the Registrar thinks it is just to do so in the circumstances of the case. The Registrar will exercise this discretionary power judiciously and by considering all the circumstances of the case. Although the wording of Section 70 differs from that of Order 23 of the Rules of Court, the primary purpose behind Section 70 is similar to that for Order 23, which is to ensure that the defending party ("Defending Party") in any action has some security that, in the event that he wins, the Initiating Party or the party taking out the action will pay his costs. Thus, the factors that will be taken into consideration by the Registrar in deciding whether to grant security for costs in an opposition or revocation or declaration of invalidity proceedings are similar to the factors that the courts will take into account in deciding whether to grant security for costs in a civil suit. These factors include, amongst others: (i) (ii) (iii) (iv) Whether granting the security would stifle a genuine claim. Impecuniosity of the Initiating Party is inextricably linked to this factor. Where the granting of the security would stifle a genuine claim, the application for security may be denied. One of the ways to moderate the concern of stifling a genuine claim is to reduce the quantum of the security allowed. The ease with which a Singapore decision can be enforced overseas. Generally, if the foreign jurisdiction is covered under either the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264) or the Reciprocal Enforcement of Foreign Judgments Act (Cap 265), then there is a tendency that the application for security may be refused. The likelihood of the Initiating Party succeeding. However, it is important to note that in coming to her view as to the probability of success of an action, the Registrar is not required to make a detailed examination as to the merits of the case. Indeed, the Registrar would not be in position to do so in particular where the action is still at an early stage. If both parties have an arguable case on the face of it, then this will be a neutral factor. The stage at which the application for security for costs is made. In general, the case is stronger where the application is made at an early stage of the action. This 1 For clarity, in the context for Security for Costs "Initiating Party" refers to the party initiating the main action e.g. an Opposition, and not the application for the security for costs.
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