A. Brief Introduction of IP Laws and Regulations
In Malaysia, most intellectual property rights are protected by way of statutes. There are legislations fortrademarks, patents, copyright, industrial designs. geographical indications, layout-designs and plant varieties.Malaysla is also a member of and acceded to several international convontions, treatles and agreements, suchas the Agreement on Trade Rolated Aspects of ntlletual Property Rights ("TRIPS Agreement) and the WorldInellctual Property Organisation (WIPO Convention.
The Malaysian Itellectual Property Corporation ("MyIPO), an agency under the Ministry of Domestic Trade,Co-Operatives and Consumerism ("MDTCC) was established to regulato matters rolating to the itellctualpropety system in Malaysia and responsible for the ffectve administration of varlous ntellectual property rights.Enforcement of the ntellectual property rights remains with the Enforcement Division of the MDTCC.
B. Patent Application
In Malaysia, patents are protected under the Patents Act 1983. The ollowing reoquirements shall be compliedin order to qualfy for patent protection:
a)it must be novel and must not have been disclosed to the public worldwide prior to the priority dateof thepatent application;
b)an inventive stop is involved in that it would not have been obvious to a person having ordinary skill in theparticular field to create the same invention; and
c)it is capable of being made or used in any kind of industry.
Any person may make an application for a patent oither alone or jointy with another and the general ruleisthat the right to a patent belongs to the inventor. The Malaysian patent rgstration regime adopls the frtstoflmechanism.
All patent pplications are to be fled at the MyIPO. There is no rsticion on the natinality or residencyofthe pplicant but a foreign pplicant who does not have his domicile or residence in Malaysia shall be required toappoint a patent agent to prosecute his pplication An pplication must contain a request for the grant of patent,desripion, claim(s), drawing(s) and an abstract.
Malaysia acceded to the Patent Cooperation Treaty(PCT) on 16 May 2006 and it came into force on 16August 2006. Patent protection may also be obiained by entering the natonal phase of an pplication under thePCT 30 months from the earfiest prority dato.
For any patent pplication fld or any patent granted afer 1 August 2001 the patent is vlld for 20 years fromthe date of fling of the application. pialioati。 Throughout the Validity period, the patenteo shall pay an annual prescribod fee,alure of which the patent shall lapse and a nolice wll be publishod in the Government Gazette Throughout theduration of the grant, the patentoo shall be etild to ssignor transmit the patent and condude icense contracts.
C. Trademark Registration
In Malaysia, trademarks are protected as ntllectual property rights either by rgistation under tho TradeMarks Act 1976 (Trade Marks Act)or by common law.
a. Registered Trade Marks
The Trade Marks Act provides a system for rgitraion of trado marks. Inorderforatrado marktoberegistored, it shal contain at least one of the flwvingg prticulars
a) he name of an ndividuadl companyor fmrepresentedina specalor paricular manner, diadual rofsome sines
b) the signature of the ppliant lor rgistationon of some predecassor inhis business;
c) an invented word or words;
d)a word having no direct referencetc foror o the character or quality of the goods or services not being. accordingto ts ordinay meaning. a geographical name or sumame;or
e)any other distincive mark. a name, signature or word which does fit the above descriptions may not be Notwithstanding the above, a registered unless i S by evidence lustratd to be dstinctive.
Any porson claiming to be the proprietor of a trade mark usod or proposed to be used by him may make to the MyIPO. A foreign applicant who does not have his domicle or residence in an applicaton for reogistration to the Malaysla shal be requirod o appointa rndemank agento prosecutehis ppicaio prior to fling a trademark application, to conduct a soarch for any similar mark rogistered Itis prudent, prior When the application has been accepted whether absolutely or subject to conditions, or pending registration. amendments. modtfiatons of itatonso tho rgistar shall causethe sameto be adverised inthe Govement Gazete for 2 months to permit ntersted parties to ppose the pication for rgitraion Wherenoppstionis fled or any such ppositon dimissed, the Regstrar shall egistor the mark and grantacefraleofregitaton
Trade mark rgitaton s vlld for a pernodof 10 years from the date of plcatio Such rgistationmayberenewed from time to time in perpetuity. Regitration of a trade mark tfords the proprietrtheexdusivenghtouse the trade mark.
b. Unregistered Trade Marks
For unregistered trademarks or trademarks not capable for registration, the legal action for infingementlies in the tort of passing off. The tort of passing off is essentialy an action founded on common law accordedto proprietor seeking for legal remedy on misappropriation causing damage on the goodwill and reputationofitsbusiness.
The Trade Marks Act does not prevent the registered proprietor of a registered trade mark from commendinga legal action in passing off, provided certain requirements are satisfed.
D. Measures for Intellectual Property Protection
In recognition of the increasing importance of intellectual property in the current intelligence-poweredeconomy. Malaysia lustrates its commitment in providing a relatively well-developed, moder and comprehensivelegal framework and landscape for the perseverance and protection of ntellectual property rights.
Given that one's intellectual property rights may be the most important business asset and the keydetemining factor for the continued growth and maintenance of business competitiveness within a certain market,all proprietors are advised tobe vgiant in understanding and enforcing its available rights against intfingementand misappropriation under the Malaysian framework.
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