Just a Repost? Malaysia’s Court of Appeal on Trademark Use on Social Media

Reposting content is probably one of the least dramatic things a business does on social media.

A manufacturer uploads a promotional video, the local distributor shares it on its own Facebook page and the content reaches a new audience with very little effort. It is so routine that few businesses would regard the act of reposting itself as something capable of creating a trademark issue.

A recent Malaysian Court of Appeal decision suggests otherwise.

In Maxcare Success Sdn Bhd v Motionquest Sdn Bhd, the Court of Appeal considered whether videos containing another party’s trademark, reposted on a company’s official Facebook page, could amount to use of that trademark in the course of trade under the Trademarks Act 2019.

The decision is particularly relevant for businesses which regularly receive marketing materials from overseas principals, manufacturers, licensors or regional marketing teams, especially where the branding used in Malaysia differs from that used elsewhere.

The dispute behind the Facebook posts

Maxcare Success was the registered proprietor of the MAXOIL trademark for lubricant products.

There was already some history involving another sign, MAXXOIL. Earlier litigation had resulted in the MAXXOIL registration being expunged from the Malaysian trademark register. Lubricant products manufactured in the United States under that branding could therefore not be sold in Malaysia using the MAXXOIL mark.

Motionquest later became the Malaysian distributor of those products. For the Malaysian market, the products were rebranded and sold under a different trademark, MAXX PERFORMANCE.

From a product branding perspective, the position therefore appeared to have been addressed.

The problem came from somewhere rather more ordinary: Motionquest’s Facebook page.

Between August and October 2020, Motionquest reposted four videos on its official Facebook page in which the MAXXOIL sign appeared. Maxcare subsequently commenced proceedings for trademark infringement, among other claims.

At first instance, the High Court dismissed the infringement claim.

The High Court and Court of Appeal saw the repost differently

The High Court accepted that the MAXXOIL sign appeared in the videos but considered that the reposting did not amount to use in the course of Motionquest’s trade because the products actually sold by Motionquest in Malaysia were branded MAXX PERFORMANCE.

The Court also rejected the argument that the Facebook videos amounted to infringing advertising because the advertisements did not relate to products being sold under the offending mark.

The focus was therefore largely on the branding attached to the goods themselves.

The Court of Appeal took a different approach.

In its decision dated 29 January 2026, the Court held that reposting the videos amounted to use of the MAXXOIL sign in the course of trade.

The Court considered the purpose of Motionquest’s Facebook page. It was an official business page used to promote and give visibility to the products sold by the company. In that commercial setting, the publication of videos containing MAXXOIL could not be treated as separate from Motionquest’s trade merely because the products eventually sold to customers carried another mark.

The Court also regarded the Facebook page as a “commercial document” under section 54(3)(g) of the Trademarks Act 2019 and considered that a Facebook post could constitute advertising under section 54(3)(h).

The history surrounding MAXXOIL was also relevant. The products had specifically been rebranded as MAXX PERFORMANCE for sale in Malaysia following the earlier trademark dispute. Against that background, the Court found that Motionquest had reason to believe that it was not authorised to use the MAXXOIL sign in Malaysia, which brought section 54(4) of the Act into consideration.

The Court accordingly found trademark infringement and granted a permanent injunction.

It did not, however, award damages or an account of profits because there was insufficient evidence that products bearing MAXXOIL had actually been sold by Motionquest. The case therefore illustrates an important distinction between establishing infringing use and proving the loss or profit required to support a monetary remedy.

The repost itself is part of the trademark analysis

The decision should not be read as meaning that every repost containing another person’s trademark will amount to infringement.

The circumstances in Maxcare Success were clearly commercial. Motionquest was using an official company Facebook page to promote its business and products. There was also an established history concerning the MAXXOIL mark in Malaysia and a deliberate decision to market the products locally under different branding.

A private individual sharing content for personal purposes would present a very different factual position.

For businesses, however, the practical point is an important one. Reposted content is not necessarily outside trademark law simply because the material was created by somebody else.

Once material is published through a company’s commercial social media account, the manner in which that material is being used becomes relevant. The branding appearing in a video, image or caption may therefore require the same level of attention as branding appearing in more conventional advertising materials.

When international marketing content crosses borders

This is where the decision becomes particularly relevant for international businesses and their local distributors.

Trademark rights remain territorial. Marketing content, on the other hand, is often created regionally or globally and circulated with very little distinction between markets.

An overseas manufacturer may create a promotional video using branding which it is perfectly entitled to use in its home market. A regional marketing team may send the same material to several offices across Asia. A franchisor may provide ready-made social media content to its franchisees. A local distributor may simply repost content from its principal’s global account because it is readily available and already professionally produced.

In most cases, this works perfectly well. Problems arise where the mark appearing in that material cannot be used in Malaysia.

This may be because an earlier Malaysian trademark already exists, the parties have entered into a coexistence arrangement or different branding has been adopted locally to avoid a known trademark conflict.

In those circumstances, reviewing only the mark appearing on the product or packaging may not be enough. The promotional materials used to support the Malaysian business should be considered on the same basis.

That is perhaps the most practical point to take from Maxcare Success. A business may have taken considerable care to ensure that the products entering Malaysia carry the correct local branding, while an overseas promotional video featuring the original mark continues to be reposted on its Malaysian social media account.

The trademark issue may therefore arise before the customer ever sees the product itself.

Social media is now part of the commercial picture

The Court of Appeal’s approach also reflects the way businesses now communicate with customers.

Commercial promotion is no longer confined to brochures, print advertisements or product packaging. Facebook pages, Instagram accounts, TikTok videos and marketplace listings are now part of the ordinary marketing activity of many businesses.

For businesses operating across several jurisdictions, this makes coordination between marketing and trademark strategy increasingly important. Where there is a known restriction on the use of a particular mark in Malaysia, those responsible for local social media should be aware of it and regional content should be reviewed before it is republished.

This does not mean that every social media post requires formal legal clearance. That would be neither realistic nor necessary. It does mean that where a business already knows that particular branding cannot be used in Malaysia, the same restriction should be reflected consistently across its digital marketing.

The decision in Maxcare Success is therefore useful beyond the particular facts of Facebook and lubricant products. It confirms that trademark use can arise through the ordinary digital activities businesses now undertake every day.

And sometimes, apparently, a repost really is more than just a repost.

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