Businesses often assume trademark infringement only happens when someone sells counterfeit goods or copies a brand name. However, trademark risks can also arise when a business displays another company’s name or logo on its website, marketplace or mobile application.
This is especially important for online platforms that list third-party products and services. Even if the third party supplied the content, the platform may still face legal risk depending on how the mark is used and the impression created for customers.
Two cases involving Samsung and Swatch Group in the UK, and Malaysia Airlines, Firefly and AirAsia MOVE in Malaysia, illustrate these risks.
Samsung v Swatch Case
In Montres Breguet SA & Ors v Samsung Electronics Co Ltd & Anor, watch-face applications featuring trademarks and branding associated with Swatch Group brands, including Omega and Tissot, were made available through Samsung’s Galaxy App Store.
The applications were created by third-party developers. Samsung argued that the developers, rather than Samsung, were responsible for the infringing content.
The UK High Court nevertheless found Samsung liable. The court considered Samsung’s wider role in operating and promoting the Galaxy App Store and its smartwatch ecosystem. The issue was therefore not simply whether Samsung had technically hosted third-party content. The court considered whether Samsung had commercially made the infringing applications available to users through its platform.
The infringing applications were downloaded approximately 157,000 times in the UK and European Union. Paid downloads generated only about US$1,002.77 in revenue. However, the court did not assess the damages solely by looking at the revenue generated from the applications.
In the later damages decision, the court awarded approximately US $ 11.6million. This included about US10 million for displaying the infringing material in the app store and about US$1.6 million for the use of the marks on the smartwatch faces. The court considered the value of the trademark rights and the licence fee that Samsung would reasonably have negotiated for the relevant use.
The case does not mean that every platform is automatically liable for everything uploaded by its users. However, it shows that a platform may face liability where it plays an active commercial role in making, promoting or facilitating access to infringing content.
For businesses, the practical lesson is simple: outsourcing the creation of content does not necessarily remove responsibility for how that content is used on the business’s platform.
AirAsia SuperApp Case
In Malaysia, the dispute between Malaysia Airlines, Firefly and AirAsia involved the use of airline names and logos on the AirAsia SuperApp.
The platform displayed Malaysia Airlines and Firefly flight offerings and allowed customers to search for and purchase tickets through the app. AirAsia argued, among other things, that the marks were being used to identify the actual airlines providing the flights, rather than to identify AirAsia’s own services.
The Malaysian High Court took a broad approach to the meaning of “use” under section 54 of the Trade Marks Act 2019. It held that the use of a mark does not necessarily have to be “use as a trademark” in the traditional sense in order for infringement to arise.
The court also considered the overall impression created by the platform. Although the Malaysia Airlines and Firefly marks identified the airlines operating the flights, the marks appeared within an AirAsia-branded commercial environment. The court found that users could reasonably believe there was some form of collaboration, association or agreement between the airlines and the platform.
The court found that the relevant use fell within the statutory forms of use under section 54(3), including offering or supplying services, using the marks on commercial documents and using them in advertising.
The High Court ruled in favour of Malaysia Airlines and Firefly in January 2024. The Court of Appeal later dismissed AirAsia MOVE’s appeal on 5 January 2026. The available procedural update also records that the Federal Court dismissed the application for leave to appeal on 30 June 2026.
The case does not mean that any display of another company’s name or logo is automatically unlawful. The court still considered the statutory requirements, the services involved and the likelihood that consumers would be confused or misled about the commercial relationship between the parties.
The important point is that accurately identifying the genuine service provider may not, by itself, eliminate the risk. The way the mark appears, the surrounding branding and the impression created for customers may also matter.
Key Takeaway for Businesses
Before using another company’s trademark, businesses should carry out proper due diligence to confirm who owns the mark and whether the proposed use requires authorisation or a formal trademark licence.
Where the intended use is ongoing, extensive or commercially important, businesses should consider negotiating a written trademark licence with the trademark owner. The licence should clearly define the permitted marks, products or services, territory, duration, platforms, advertising materials and any approval or quality-control requirements.
Under Malaysia’s Trade Marks Act 2019, a trademark licence must be in writing and signed by or on behalf of the trademark owner. The licence may also be recorded with MyIPO as a licence affecting the registered trademark. Although recordal is not generally required for the licence to operate between the parties, it is recommended because it provides a formal record and may give public notice of the licence.
Businesses should also review their agreements with suppliers, distributors, designers and marketing agencies to ensure that the use of names, logos, product images and other brand materials is properly authorised. Written records of the permission or consent should be retained, and the business should have a process for reviewing and removing third-party content if the brand owner raises a concern.
Using another company’s trademark does not automatically amount to infringement. However, the Samsung v Swatch and AirAsia SuperApp cases show that businesses should not rely on assumptions or industry practice when using another company’s brand. Proper due diligence, clear authorisation and, where appropriate, a negotiated and recorded trademark licence can help reduce the risk of disputes.
Should you require professional assistance with trademark due diligence or licensing, please contact us Flexly IP for consultation.
