Trade Marks Law in Malaysia – An Overview

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Trademarks law is one of important components in Intellectual Property course. Recent development in statutory provisions and international conventions has embarked a new dimension in trademark law in Malaysia. It is not within the ambit of this post to discuss the very details of sub-components thereof. Nevertheless, this post serves as an introductory remark in providing the scope and parameter of the relevant subject matter.
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Log on to Chamber of Knowledge for further readings   

Professor X

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I
12 April, Berlin  
The fact that every compass needle will always point to the Magnetic north is no longer a mystery among the navigators nor a controversy discovery among the geologist or astronomer following the removal of its veil of secrecy many years ago. A compass needle is a magnet in which the arrow that points north has a north magnetic polarity. The North Pole of the earth actually has a south magnetic polarity and therefore attracts the north pole of a magnet of the compass needle.

However, what remains an absolute secrecy is the fact that the magnetic polarity of North Pole of the earth is due to the position of tectonic plates beneath the earth. They are, actually, the source of the earth’s magnetic polarity. But nothing would be more appealing than discovering that those tectonic plates are feely moving as the earth evolves. During the embryonic stage of the age of the earth, the positions of the tectonic plates were at the South Pole. This exposed that, had there been a compass during the ice age, its needle, definitely, will always points to the south! According to the record, Melissa and me disclosed that the tectonic plates moved from the South Pole to the North Pole, as their today’s position, long before the existence of human civilisation. 

 14 September, Frankfurt
CC Max that we both designed functions as electromagnetic device to pinpoint the current position and recent development of the tectonic plates. It took nearly five months for us to locate the exact direction and the pattern of the tectonic plates’ flow. We manage to find out that half of the tectonic plates have already moved toward south! However, such phenomenon doesn’t affect the compass’ reading. We both were unable to figure out its impact toward our ecosystem but Melissa linked the tectonic plates moving with the unusual changing of monsoon direction and the mass migration of tuna and salmons in the Atlantic Ocean.

We had a quarrel after Melissa decided to expose our on-going experiment to the reporters at the press and media conference. She was so quick to point out that these extraordinary phenomenons deserve public and government alertness. I’m not willing to let the public to laugh at her for her immature statement. People do not care about what we have been researched for. They only start to believe once they start to suffer the pain. For me, the impacts of the phenomenon are not devastating enough. I try to stop Melissa. I killed her. 

III
29 November, Ludwigsburg
I continued the research alone. Suddenly, I found that Melissa was correct. The tectonic plates are moving to south in an immense number. The history is about to repeat. The compass needle is about to point south. Only now I manage to discover that once the earth magnetic field changes from north to south, the axial rotation of the earth will also change accordingly. The impacts are severe. The cycle of days and seasons will be dramatically changed, the earth’s rotation is no longer counter-clockwise. Hence, the sun will rise in the west and set in the east!

The unreachable dreams of mine

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Have you ever thought to be somebody else instead of being the original you? This is not an issue whether do you proud of being yourself or do you tired of being realistic. Rather, this is a motion of thought in order to discover your personal potential and the unexplored skills of yourself. I believed that sometimes, partly or substantially, most of our cycles of live were arranged by other persons, especially our family members or even friends. Sometimes, that cycle of live of what we are going to be were destined by fate or usual practice of others. 


Thus, there is a saying like “We already have too much doctors in our family, I really hope that you will be a pilot, my dear son,” or “Most of your family member are able to pay musical instrument very well, I wonder why you don’t have the interest to follow the same path” or  “We can’t afford the university fees, like your brothers and sisters, going to Form 6 would be better,” or “The injury that you sustained previously limits your efficiency. I strongly recommend that your sport life ends here.”

For sure, some might address that “things don’t happened without reasons”, “there are wisdom lies behind the incident” and “it is your destiny, so bare with it”. Yet, others might raise counter argument that “your disabilities and other limitations shall not constitute a bar for your success. You need to try harder”. This is why we have the late Sudiman as a singing lawyer; Haliza Misbun, a legal practitioner who pursue in entertainment industry as a popular actress. Besides, being a soldier (Moorthy case) or even a student (Abang Muqharabbin) was not a bar for them to reach the summit of Everest.

Back to the core of our discussion, I really have a loooot....of dreams that I’ve previously promised to myself, such dreams would not be left merely as dreams per se for at least, out of thousand, one would comes true. Had not I been a student, I really wish to try my luck in extreme sports. Hey.. I’m not joking laa. I never came across the opportunity to do white water rafting, BMX, sphere craze, scuba diving, stand up paddling and surfing. The most that I had tried was skateboarding, which I ended with terrible accident. 

I really wish to be a football manager. I’m not good at playing football but I’m really full of myself that I’m good at “managing other”. I’m wonder if I could end it up, in the future, by managing the Chelsea football team replacing Ancelotti. Aaa....it’s the most wonderful dream I could ever dream of (big smile). Another thing is that, I really wish that I could try my luck in acting. I prefer to be a bad character who always destroys other persons hopes and make the Hero’s life miserable. Haha~ what a cruel character. I’m also interested to play a character portraying a person who is suffering from mental illness or psychosis. When doing my BEL course, I wonder if I could be the main character in The Tales-Tell Heart, an unnamed narrator who insists on his sanity after murdering an old man with a ‘vulture eye’. Creepy isn’it? 

It’s nearly 5 a.m. I think I must stop here for otherwise it would be too late to prepare for my ‘sahur’. I wonder if there is a second post for this topic. Anyway, for this end, I hold that my unreachable dreams will not be unreachable forever so long I put great gut to realize them like the quotation “Never give up, Never surrender” haha~. How’s yours?

Fashion?

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I’m not a quick thinker (definitely), so when it comes to soft debate or social argument amongst family members or even friends, I’ll end it up with my big SILENCE and tend to be talkative when the conversation is already over or new issue emerged. Usually, I would only have my point to counter the others an hour after. So most of the time, I would rather mumbling (alone) to relieve personal dissatisfaction.

I had a small talk with my friends about the way how should we appear in public. It suddenly arose after we saw a boy, presumably 15 years old, with long green spiky hair, wearing pant indigo in colour. Personally, I would rather say though it doesn’t quite suit me, the boy is entitled to express himself at will. And all of a sudden, one of my friends mentioned about my gloomy-dull-unattractive-way of appearance. Ouch! (Haha~).

Instead of simultaneously responding, I’m only ready with the reply two days after our small talk. I already knew the fact that fashion is not about utility. An accessory is merely a piece of   iconography used to express individual identity, their prestige and so does their social status. For me, I put little emphasis or care on other persons’ views regarding my social standing through my clothing, especially when it comes to brand selection. But that did not mean that I don’t even bother on how I should appear in public. As far as I concern, for skinny guy like me, colour combination, size selection, and proper attire count the most. This is of course in the context of casual appearance. When it comes to formal occasion, I’ll make sure that I’m in the best condition for I can’t compromise with my professionalism, on one hand, and goodwill, on the other. I think most people would die doing the same thing, isn’t it?

But hey... I have to maintain or, in other words, fix the cycle throughout the months. There was a time where I collapsed and no identification details on my body. Most of the time, I tried to be along with my identification card, matrix card and hospital plat which embossed with my blood type, rhesus and my illness but sometimes I do left them behind when I go out. Thus, I’ve to maintain my theme and the way how I do usually look so that I can be easily recognised by others. Being in this state, I can't afford to be choosy and idealistic.

To those who barely know me, they might think that I’m numb in my typical look but to those who know me well, in a crowd, they know where and how to find me..

Dad...

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Dear Dad, sometimes I felt initially defeated with my personal defects and lack of inner strength in pursuing your tall orders and ambitious goals. Most of the time I feel like I’m not belongs to you for I’m not even having your qualities. Forgive me for I’m not capable of reaching your expectation and perspective. But if you read this, I really want you to know that every single attempt that I took in whatever task, I just want you to be proud of me even though I already knew that those undertakings, if I manage to succeed, definitely would not be seen as an attempt to compete, nor even replace Leo’s attainments. Perhaps, there is a truth behind your words that “Leo was born with lucky...and I so lucky to be born”. It’s really hurt. Deep inside my heart, I really want you to view me as your legacy and takes great pride in it.

Sometimes, I feel like I’m the person who is destined to fail in life and I really wish that I could make it different. Most of the time, I’m so envy with my colleague who always achieve whatever they want even though I’m full of myself that I have put great energy and afford to get the same things. The one who should be blamed is me. Me alone. But I knew that God promised not to test me more than what I can handle. It is the unshaken faith that I hold continuously. You know Dad, every time we went out together and you met you friends, you always miss to introduce me as your son. I knew that i'm embarrassing you. But you are forgiven dad. As I, too, long to be forgiven.

This is not going to be the end of my attempt for I shall take it as a challenge and retry no matter what it takes, even though I have to forego the state of being alive because nothing would be more alive than hearing from you saying “that’s my boy”.....

Fear creates Fear

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It is not too late for a “kumbaya song and tomato juice” in celebrating the newly crowned Barclays Premier League, the Blues team (Chelsea! Chelsea!) yet, it is too early to claim that the fifth semester doing law is over (for the  result has not yet been revealed). It is about more than three months since my last post I haven’t update my blog due to my full life, and it is about more than a week since my last final-exam paper I’ve tried to accumulate my inner strength before I’m dare enough to talk about the devastating result of my exams. To be frank, I can’t lie to myself yet I decline to admit it too soon (though we are encouraged not to fear for uncertain fact that has yet to come, we are the one who know ourselves better than the others, isn’t it? So the power to predict and feel about it shall lies on our shoulders...). I must prepare for the worst for the next semester. The undeniable fact is, intellectual property course is totally a very tall order for me. While the others enjoy their holidays and counting the days for World Cup, I’m counting the days for the senate’s approval for the exams result to be available. And when the new semester begin, while the others weighing the lost and the gain either to continue for LLB or to pursue their career, I’m watching my steps either to have 6 courses throughout the final semester or to continue for an additional semester. Shit.... I can’t help myself. Even, reading patent law and doing short practical session in Klang can’t divert my attention either.  For now on, all I manage to do is to wait and pray for a fair wind, hoping for a miracle. I’m not sure what I’m afraid of – the social repercussion or the social repercussion. It’s seem like social repercussion is a big deal for me rather than other possible difficulties endeavouring the final semester. Haha~ . Shit... I’m so scared for real.

Anyway, like Elizabeth said in The Golden Age: “Fear creates Fear”... 

Test of Originality [Intellectual Property] 2nd Post

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Continue...
1.      University of London Press v University Tutorial Press (1916) Ch. 601
The question arose as to whether certain mathematics exam papers were original literary works. The exam papers consisted of conventional maths problems in a conventional manner. The court held that the Copyright Acts are not concerned with the originality of ideas, but with the expression of thought. The simple fact that the authors drew on a body of knowledge which was common to mathematicians did not compromise originality. The requirement of originality, it was held, does not require that expression be in an original or novel form. It does, however, require that the work not be copied from another work. It must originate from the author. As such, even though these were the same old maths problems which every student is familiar with, and even though there was no creative input, however, the skill, labour, and judgement of the authors was sufficient as to make the papers original literary works. The court held on the basis that what is worth copying is prima facie worth protecting.

2.      Pacific Film Laboratories v Fed. Commissioner of Taxation (1970) 121 CLR 154
In this case, the issue arose is whether the reproduction of prints owned by a third party and for that third party was an act of sale which could incur sales tax. Pacific Film argued that as it had no property right in the prints, it was not selling anything to the customer which might be taxed. The High Court rejected this argument saying that when Pacific Film reproduced the customer's negatives, under authorisation from the customer, the copyright was owned by the customer but the chattel produced in the process of reproduction was owned by Pacific Film. The sale of this chattel to the customer incurred the sales tax. Further the court held that he copyright is not a right in an existing physical thing. It is a negative right, as it has been called a power to prevent the making of a physical thing by copying.

3.      Elanco v Mandops (1979) FSR 46
The plaintiffs had copyright in instructions for the use of a weedkiller, drawn from public sources. The defendant produced instructions for its product using the plaintiff’s material. After objections from the plaintiffs, the defendants recast these instructions several times. Despite these revisions, in an interlocutory application, the final version was treated as arguably infringing because the defendants had not returned to public sources but always drew their information from the plaintiff’s instruction. Thus, Elanco effectively secured a monopoly over the information contained in their instruction despite the facts that it was the public domain. Copyright does not prevent others using the same sources but prevents copying of the effort made in creating the secondary work.   
The Court of Appeal accepted that a label of instruction placed on the side of a barrel of herbicide was a copyright literary work. Further, the court took note that a great deal of time and labour had been spent in this compilation, and there could be no doubt that the author was entitled to protection of the fruit of his labour. It is clear that the court placed emphasis on the skill and labour in developing the compilation. The court view that copyright not simply as protecting bare expression itself but also the process by which that expression came into existence. The main emphasis is not to allow someone to take advantage of another’s work and reap something which he has not sown. The skill, labour and judgment involved in the process of copying will not confer originality.

4.      Independent Television Publications Limited v Time Out Ltd (1984) FSR 64
In this case, the plaintiffs published weekly magazine containing advance details of television and radio programmes for the following week. They asserted ownership of the literary copyright in their daily programme schedules, claiming that these constituted compilations under the Copyright Act.  The defendant also published a weekly magazine which included details of forthcoming cinema, sporting and musical event. The said magazine also listed advance details of selected television programme, and it was admitted that these were taken from the plaintiff listing and schedules.
The court granted the injunctions sought and upheld the view that there should not be any short cut by producing works of others. The programme schedules were constituted compilations and they required a great degree of skill and labour in their preparation and were thus protected as literary copyright works inventiveness

5.      Goodyear Tyre @ Rubber v Silverstone Tyre @ Rubber (1994) 1 MLJ 348
This case concerned whether copyright over artistic drawings of the tyres can be used to stop others from manufacturing articles according to the drawing. The plaintiff in this case contended that the defendant tyre products were reproduction either from the plaintiff’s drawing or from the plaintiff’s tyre product by reverse engineering. The court held that the function of copyright is to preserve rights over the artistic expression of the drawing and not as a measure to protect the functionality of the articles drawn. What the plaintiffs are in essence asking to protect is the idea of the function of the tyre and not its artistic value. 

Test of Originality [Intellectual Property]

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For whom I care...

1.      Millar v Taylor (1769) 4 Burr 2304
In this case, the court held that common law rights were not extinguished by the Statute of Anne, the first copyright law in the Kingdom of Great Britain. Thus, there is a perpetual common law of copyright and that no works ever enter the public domain.  Under this ruling, the publishers had a perpetual common law right to publish a work for which for which they had previously acquired the rights and no limitation of time for such right so as to cause the work to pass to the public. When the statutory rights granted by the statute expired, the publisher was still left with common law rights to the work.
 
2.      Donaldson v Becket (1774) 4 Burr 2408
This case was an injunction founded upon the judgment in Millar v Taylor and denied the existence of absolute common law of copyright. The court in this case held that copyright is a creation of statute and its duration of protection is limited. Thus, the exclusive right of authors is confined within the limits prescribed by the statue. 

3.      Lau Foo Sun v Government of Malaysia [1974] 1 MLJ 28 (FC)
The appellant, a chartered and structural engineer, had claimed a declaration that he was entitled to the copyright in the engineering drawing and designs prepared by him for the construction of double-storey classrooms for Tun Fatimah School in Johor Bahru and some other schools for the Government. It was held in the High Court that the appellant in preparing the drawings had substantially copied from PWD drawings and therefore the appellant’s drawings and designs were not original literary works so as to qualify for copyright protection. On appeal, the issues arose before the court are;
a)      Whether or not copyright exists in engineering drawings and designs.
b)      Whether or not the engineering drawings and designs are original works within the meanings of the Copyright Enactment.
The court, nevertheless, allowed the appealed based on the statutory presumption that copyright exist in any work. The presumption remains unrebutted since the respondent failed to produce any corresponding PWD drawings for comparison so as to maintain their contention that the drawings were not original. 
  
4.      Exxon v Exxon Corporation
In this case, the plaintiff argued that the term “Exxon” is protected by copyright law because he put considerable time and energy into the development of the name and that there was a significant investment into creating the name, thus, rendering it as an original literary work.
However, the court held that the name “Exxon” is only a word and as such is not capable of any copyright protection. A word alone does not convey any intangible information beyond its dictionary meaning and thus can’t be a literary work. Further, the court held that allowing copyright in single words would overlap trademark law entirely. Copyright law originality is a concept distinct from novelty in design law and from obviousness in patent law. 

5.      Re Dickens [1935 1 Ch. 267
The case concerned the last will and testament of Charles Dickens, an English novelist. In his will he had left all of his real and personal estate (including his copyrights) to John Forster and Georgina Hogarth upon trust for his children. In addition he left Ms Hogarth ‘all of my private papers whatsoever and wheresoever’. Among the private papers that Hogarth received was a manuscript of an unpolished work, originally written for the instruction of Dickens’ children, The Life of Christ. Hogarth, in her will, bequeathed the manuscript to her nephew, Henry Fielding Dickens, who subsequently left it to his wife, Marie Therese Dickens, the appellant. The appellant assigned the copyright in the work to Associated Newspapers Limited. The residuary legates of the Dickens estate sought the proceeds of the sale, arguing that the copyright in the work did not pass with the manuscript to Georgina Hogarth. The court held in the respondent’s favour on the basis that copyright in an unpublished work was an incorporeal right of property which subsisted independently of the actual manuscript.   

A Letter from Kyle to Kyle

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Do men think that they will be left alone on saying, “We believe”, and that they will not be tested?

Al-‘Ankabut: verse 2

It has been quite for some time since I have been around here and to be frank, it does make me feel such a pain in the ass. Houseflies, ants and mosquitoes. To certain extant, they do, effectively, contribute as part of my source of worry and I’m sick of it. Up till now, I still remember it correctly, the fact that I’m pissed by a group of thirsty ants that committed suicide in my electric kettle!  I knew being a living thing, water is essential part of their lives but, come-on, instead of my kettle, why don’t you guys drink in my toilet? By right, there is a lot of fresh water inside there! It’s like, living in millennium era, everything getting smarter (including ants coz they prefer my boiled plain water to water in the toilet!).

The same thing goes to mosquitoes in my bedroom and houseflies in my kitchen. For cockroaches, perhaps it will be well addressed in the next coming post, otherwise this post gonna be four pages long. The thing is, they just came without being attracted. The day where my patient reaches its limit has finally come, and it’s silly to mention that I uttered those, “Kenapalah kewujudan kamu membawa binasa kepada manusia, mahkluk perosak.” (vector, your existence brings more harm than good). It is after few months later, I managed to find the “hikmah” (wisdom) that is concealed along with the existence of the vector that I hardly see via my bare eyes. So, I’ve decided to write a short letter to myself that I propose it to serve as a remainder in the future.

Dear Kyle,
I thought you knew it already that Criminal is a tough subject. Yet, it’s rather tough for you to estimate the accurate time when a victim was murdered once you become a lawyer for criminal litigation in the next coming 2 years. You used to be a science stream student but for now, the calculation should be vested in expert witness, forensic and the police. For sure they are quite reluctant to share any information, what more when you are defending the accused. But if you are smart enough, just take a maggot from the corpse. At least, you will be able to discover how long the corpse has been there by reflecting the age of the maggot. Remember, housefly is the first vector to come to dead body after 6 hours it shall so called dead body. After all, houseflies are not that bad, isn’t it?

Compare and Contrast. Ants, bees and spiders with “Al-Naml”, “An-Nahl” and “Al Ankabut”.  They are the surah in the Holy Quran. At least, they are popular than you coz Allah recognised them in His words. Is there surah Kyle? Had you read the Holy Quran and understand its meaning by your heart, you will not question whether ants give you more good or more harm. So, if you just recite or memorise the Holy Quran without knowing or even try to get to know its meaning, more or less, it is same as you try to blindingly memorise the principle in cases for the sake of passing the exam without knowing how to apply and  what it use for. It is ironic that even ants knew how to respect their Queen and work only for Her-majesty (Gustavo revealed that when the Queen died, the entire colony will depress and die due to depression) but human beings fail to do the same. In fact, they jeered the Royal via blog. (Hm... I think fyzal must be agreed with this).

Yes. It is all due to Allah’s will. Namrud died due to virus that damaged his neuron and that virus is carried by mosquitoes. It served him right for burning the Prophet Ibrahim A.S. Dear Kyle, let’s turn the table now, to what extent is your contribution toward your own religion, Islam? I knew that you have already recovered from your long fever. Thanks to Allah, your platelet is 214 and it negates the idea or possibility that it is dengue fever (nauzubillah). However, the moral lies behind the hardship that you endeavour. It is how you value your health, friendship, the sweet of completing your ‘amal’, and the taste of the food that you consumed. You only enjoyed it and feel it when you sick but you hardly think about it when you are healthy.  It is not even dengue and it’s just you the one who presumed it as dengue. It is due to that presumption that you took all reasonable precautions (I noticed a new Shieldtox aerosol in your bedroom). Can’t you see the aura of mosquitoes? And so does its merits?

Bear in mind that those ants, houseflies and mosquitoes implies the obligation to be in clean, the quality of being discipline and the value of caring for one another. Now, go seek for Allah’s forgiveness.  


The one who always remind you to reconsider and to evaluate,
Nafsu mutmainah

The Legal Nature of Intenational Law [2nd Post]

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 Is international law really law?
i.         The lack of institutions.
The functions of government can be differentiate into the legislative, executive and judicial to ensure that these functions are exercised by different individuals to avoid tyranny. In the context of International Law, it is not possible to locate a permanent supreme legislative body.
a)      The General Assembly of the United Nations is not such a body and was never intended to be so. The Security Council has power by resolution to regulate the conduct of dispute between states but these powers are limited to specific threats to peace and can only be made within the specific terms of the Charter.
b)      However, even in those limited resolution, it does not have the state organs to implement its resolution. In contrast, in an efficient and well organised state, a legislature will not only be able to pass a law but also be capable of raising the revenue through taxation to provide resources to implement that law.
c)      In the context of the judicial branch, an international court only dates from 1920 and since it does not possess compulsory jurisdiction, even a dispute that is capable of legal analysis may not be referred to the court. Examples; the question of the precise boarder between Iraq and Kuwait. Further, there is no obligation upon States to appear before the International Court of Justice unless the parties have consented in advance.
ii.       International law is determined by the self-interest of individual states.
a)      It is argued that a state may act if its vital interests are threatened but not otherwise. Examples; critic is well placed on the conduct the United States in organising the bombing of Lybia in 1986 or liberating Kuwait in 1990-1991, while showing considerable reluctant to involve itself in the disintegration of Yugoslavia.
b)      Treaties are the closest analogy to legislation in international law however treaties are more akin to contract than legislation; a source of obligation rather than law. If a treaty is viewed as a bargain concluded between parties then it is apparent that parties are more concerned with their own self interest rather than with the general good characteristic of legislation.
The preposition that treaties are consensual obligations gives rise to the following result:
                                                                                      I.            States are not bound unless they consent to them.
                                                                                   II.            Government may be in a position to pick and choose parts of a treaty to obey.
                                                                                 III.            States are empowered to opt out of the process at any time.
iii.      Ubi societas, ibi jus (‘If there is society, law will be there,’ by Cicero).
No society has operated successfully for any length of time without legal rules to balance the competing interest in that society. Law is thus both a social fact and a social necessity.
a)      In the modern world of over 150 autonomous states, law is needed to regulate and promote a degree of cooperation between these states. In the modern world where cooperation is the norm, it is claimed that law is simply a social necessity.
b)      Sovereignty was linked to territory. A ruler of a state was only sovereign within that territory. Such a premise naturally gave rise to questions as to the status of the ruler outside his own territory so that where sovereignty ended the International law began. Therefore, it is argued that International law grew up because of the territorial limitations on sovereignty.
a)      John Westlake argued that every society had a legal system and that international law existed if one could demonstrate that international society existed. With such a large number of international organisations, there can be no doubt that international society existed.   
iv.     International law appears devoid of proper means of enforcement.
a)      People believe that State have little respect for international law and have no incentive to comply with it in the absence of world government. This belief springs firstly from the common misconception that international law is broken with impunity.
b)      The fundamental characteristic of international law is that its function is to regulate the relation between states (entities known to be sovereign and which assert their full independence of any legal order). This raises the problem of how these states which affirm their sovereignty can be subject to international law. If one postulate at the outset that there is no higher authority than the state, how can the norm of international law be produced for and applied by such a sovereign state?   

     Reference: Various sources from International Law textbooks.