In depth
A distribution relationship
The applicant, Dr. Clarke, develops and sells children’s nutritional supplements globally under the CHILDLIFE brand. His products have been sold in Singapore since at least 2003. The opponent, TNSG, had served as a distributor of CHILDLIFE products in China from about 2010 to 2021. During this time, it promoted CHILDLIFE products in Chinese-speaking markets, using the Chinese words 童年时光 (“childhood time”) alongside “CHILDLIFE,” and asserted that it had developed an independent brand around the term.
After the distribution agreements ended, Dr. Clarke applied to register the mark in Singapore. The opponent claimed that this was bad faith.
Bad faith under Singapore law
To prevent registration under section 7(6) of the Trade Marks Act, bad faith must be distinctly proved, not lightly inferred. It must be assessed on the filing date, looking at what the applicant knew and whether their conduct was unacceptable according to ordinary commercial standards. The burden of proof lies firmly with the opponent.
IPOS found compelling evidence that “童年时光” consistently appeared alongside the CHILDLIFE brand, including with the ChildLife heart device, and both Dr. Clarke and TNSG itself presented it publicly as the Chinese name of ChildLife.
Given his role as the founder of the business, Dr. Clarke’s belief that he owned the mark — including its Chinese version — was held to be genuine and reasonable.
Foreign proceedings
Courts in the US and China had already found misuse of ChildLife-related marks by TNSG, attempts to claim rights through extensive filings and activities described as a “counterfeiting scheme” in the US district court. While not binding, these findings further undermined the opponent’s assertions.
Consequently, the opposition failed, and the application proceeded to registration with costs awarded to the applicant.
Key takeaways
The decision demonstrates the importance of setting out the relevant rights, licensing arrangements and permissions in distribution agreements between parties so that the parties’ rights and obligations are clear. In the event of a breach or bad faith, the agreement will serve to provide clear evidence of the party’s wrongdoing. In this case, there were unique facts surrounding the use by the parties, together with the opponent’s misappropriation in several jurisdictions. It is clear that significant weight will be placed on the evidence of the relationship between the parties and the historical treatment of the marks by the parties.
We were pleased to represent and assist Dr. Clarke in securing a positive outcome, including costs awarded against the opponent. Our team regularly advises clients on managing brand rights in various languages and across various commercial contexts. Please let us know if you have any questions about our services.
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