Silence Speaks Loudest: IPOS Rejects Opportunistic “ASWINS” Filing

The decision in Aswins Home Special v Aswins Sweets & Snacks Pte Ltd [2026] SGIPOS 5 is a clear illustration of how the Singapore trade mark regime deals with opportunistic filings, and what happens when an applicant has no credible explanation for its conduct. We succeeded in getting the application refused and acted for the Opponent successfully.

A Familiar Problem: Foreign Brand, No Local Registration

The Opponent, an Indian sweets and snacks manufacturer, had been selling products in Singapore since at least March 2021 through a local distributor. The Applicant, a Singapore-incorporated entity, only appeared in mid-2023- shortly before filing its application for a mark incorporating “ASWINS”. Notably, the Opponent did not own a prior Singapore trade mark registration. Instead, it relied on passing off. This fact pattern is not unusual. Foreign brands often enter Singapore via distributors without first securing local trade mark protection. While the law does protect such businesses, this case underscores that success depends on meeting a real evidential burden.

The signs compared were as follows:

Passing Off: Goodwill Established, Confusion Inevitable

On goodwill, the Registrar found decisively for the Opponent. Its products had an established market presence in Singapore, and even though some packaging used Tamil rather than English, the goods were recognised as “ASWINS”.

The evidence showed that the Opponent was the only trader using “ASWINS” in Singapore for the relevant goods at the material date. As the Registrar observed, the Applicant had not used the mark at all prior to filing. The Registrar therefore concluded that “ASWINS” had become distinctive of the Opponent’s goods.

The Registrar found that “ASWINS” was the dominant element in both the Opponent’s signs and the Application Mark, with the phrase “Sweets & Snacks” was descriptive and added no distinguishing value and the goods were identical or highly similar, a likelihood of confusion followed readily.

The Applicant argued there was no evidence of actual confusion. This was rejected. As a matter of principle, where a mark has not been used, the absence of actual confusion carries little weight. The decision reinforces that actual confusion is not a prerequisite to establishing passing off.

Bad Faith: A Prima Facie Case Met with “Deafening Silence”

The bad faith ground proved equally decisive. The evidence pointed to opportunistic conduct. The application was filed after the Opponent had entered the Singapore market, and the Applicant’s director had incorporated multiple “ASWINS” entities in quick succession. There were also allegations of similar conduct in relation to other brands were raised. Crucially, these allegations went largely unanswered.

The Registrar found that this established a prima facie case of bad faith, shifting the evidential burden to the Applicant. What followed was, in the Registrar’s words, “deafening silence”. The Applicant did not explain how the name “ASWINS” was chosen, did not deny knowledge of the Opponent, and relied instead on weak unconvincing evidence of use, including a later-created website and questionable financial records. This proved fatal.

Once a prima facie case of bad faith is made out, an applicant must provide a credible explanation. Failing that, adverse inferences will be drawn.

Reflections

This is a fact-driven decision, but it reinforces the simple idea that a trader cannot appropriate another’s name in the same market and expect to regularise that position through trade mark registration, especially where there is no credible explanation for doing so. For brand owners, the message is equally clear. While early registration remains the safest course, the absence of a registration is not fatal. Where there is genuine and substantiated commercial presence, the law of passing off remains a robust tool for protection.