BUSINESS BRIEF: MALAYSIA
crime,
controlled by syndicates, which makes
eradicating such offences more challenging using the existing copyright and related legislation.
How should people ensure they are protected against copyright infringement?
Documenting each creation of work which is eligible for copyright and affirming a statutory declaration declaring the ownership and subsistence of copyright in the work is advisable. Te statutory declaration is admissible in any proceedings in court and is prima facie evidence of the facts as stated in the statutory declaration.
Furthermore, the Copyright (Voluntary
Notification) Regulations 2012 enable a rights holder to voluntarily give notification to the Registrar of Copyright of its interest in the copyrighted works, with the payment of the prescribed fees.
What is the best way to deal with infringement, and what are the costs associated with it?
Acts of copyright infringement are actionable under both a criminal and civil action. Te Copyright Act 1987 grants the police and the Ministry of Domestic Trade, Cooperatives and Consumerism (MDTCC) powers to enter into any premises when there is a reasonable cause for suspecting that such premises house any infringing copies or contrivances for making infringing copies, and seize these infringing copies or contrivances with a warrant.
Counterfeiting
How big a problem is counterfeiting in your jurisdiction? While significant steps have been taken by the government in the enforcement of IP rights, counterfeiting is still a big problem. Developing countries such as Malaysia continue to be an attractive transit point for such goods. Further, the low cost of manufacturing of counterfeit goods in its neighbouring countries further increases the movement and accessibility of such goods into Malaysia.
www.worldipreview.com
“THE LOW COST OF MANUFACTURING OF COUNTERFEIT GOODS IN ITS NEIGHBOURING COUNTRIES FURTHER INCREASES THE MOVEMENT AND ACCESSIBILITY OF SUCH GOODS INTO MALAYSIA.”
What industries are particularly at threat? Counterfeiting
activities are a major concern
in Malaysia in relation to all types of goods. Fashion, luxury wear, CDs, DVDs, electronic and communication equipment, traditional health products and medicine are the more popular subjects of imitation.
What are the best strategies for dealing with the problem?
Te Trade Descriptions Act 2011 is a powerful tool in enforcing the rights of a trademark owner. A Trade Description Order (TDO) is a declaratory order granted by a High Court under the act, pronouncing whether an offending mark is a false trade description. Te TDO is used to enlist the enforcement division to conduct raids. Under the new act, the validity period of a TDO has been reduced from five years to one year.
Improving the public enforcement machinery with the setting up of task forces and the increased interaction of all relevant officials and IP owners in the conducting of raids and enforcement of border measures are effective strategies to reduce the infiltration and entry of counterfeit and pirated goods into the country. Enforcement of counterfeit goods in Free Trade Zones should also be given priority.
General
Are there any legislative changes to the IP regime that would make life easier for businesses?
Simpler processes for invoking border measure provisions
should be introduced. Laws and World Intellectual Property Review Annual 2014 125
procedures should also be put into place to include the power and authority of customs to help prohibit the import and export of counterfeit goods at all the entry points in the country. Tere is also an increasing focus on encouraging and facilitating IP valuation and financing in Malaysia.
Jyeshta Mahendran is a partner in the IP department of Shearn Delamore & Co. She can be contacted at:
jyeshta@shearndelamore.com
Jyeshta Mahendran graduated with a BSc Honours in law and chemistry from the University of Keele, UK, in 1994 and was called to the Bar of England and Wales (Lincoln’s Inn) the following year. In 1997, she was admitted as an advocate and solicitor of the High Court of Malaya. Mahendran is a registered trademark and industrial design agent. She is also part of the Competition Law practice group.
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