Registered Trade Mark Law in Malaysia

REGISTERED TRADE MARK LAW IN
MALAYSIA
Functions of Trade Mark Laws
• To protect marks used to distinguish one
person’s goods/services from that of another
person’s
• These marks are commercial identifications
such as words, designs, slogans, logos,
symbols, signatures, labels, tickets, names or
combination thereof.
• TM law therefore serve to protect owners and
public from unfair competition and deception
History of Trade Mark
• From cattle branding to commercialisation
• Protection under legislation- came later than
protection under common law
• Protection under common law – came the
under the law of passing off and it is difficult
in proving goodwill.
Dual Systems of Protecting Marks
• Two systems of protecting TM are available in Malaysia
1) Protection under the Trade Marks Act 1976
Registered TM – on satisfying certain conditions, the
owner of the mark may apply for registration of the
mark for his goods or services under the TMA 1976.
On registration, the proprietor would have the right to
prevent others from using the same or similar marks
on the same goods or services.
2) Protection under Common Law
Unregistered Trade Marks – Law of Passing Off.
Advantages of a registration system
• The TM is protected from the date of registration
even if it is not yet been used.
• Much easier to prove reputation in a mark which
has been registered.
• Section 36- Certificate of registration prima facie
evidence of validity of original registration
• Less likely a rival trade will employ similar marks
• Register of TM is a public document
Disdvantages of a registration system
• Administrative cost to bear for the initial
registration and subsequent renewal
• A contested application for TM (opposition
proceeding) may involve substantial expenses
and inconviniences
• Non-use of a registered TM may lead to the
mark’s being expunged from the register
• Mark that become too well known as to be
generic will also lead to rectification.
Qualification of a mark
• A mark can only be registered of if it has a
degree of distinctiveness which make it readily
identifiable in the marketplace
• A mark should not be allowed to comprehend
material which is in common use or which
another trades may reasonably wish to
employ in relation to his own goods.
What is a “Mark” under TMA 1976
• See Section 3(1)
• S. 3(2)(a)
• S. 3(2)(b) and
• S. 3(2)(c)
What is a Mark?
• Coca-cola’s Application [1986] FSR 472
• Whether the bottle of Coca Cola is a mark.
• …The Registrar of Trade Marks has always taken
the view that the function of trade mark
legislation is to protect the marks but not the
article which is marked.
• The word “mark” both in its ordinary meaning
and in its statutory meaning is apt only to
describe something which distinguishes goods
rather that the goods themselves. A bottle
container is not a mark.
What is mark?
• Unilever’s Application (Stripe Toothpaste)

[1980] FSR 280
• Application rejected, as the stripes appeared

only upon use after purchase.
What is mark?
• William’s Ltd Application [1917] 34 RPC 197 Court
of Appeal
• “Chocaroons”
• An invented word but not registrable as a TM
because it was used to denote a particular
sweetment from other sweetments and not to
distinguish their goods from other goods.
• To allow registration would amount to giving a
monopoly to the applicant over the name
commonly used to denote a type of goods.
REGISTERED TRADE MARK
• Owner of mark must apply for registration of
the mark for his goods or services under the
Trade marks Act 1976
• Positive Condition – MUST satisfy Section 10
• Negative conditions, MUST NOT fall within
prohibitions of Section 14 and Section 19.
Registrable Trade Mark
• 10.
(1) In order for a trade mark (other than a certification trade
mark) to be registrable, it shall contain or consist of at least
one of the following particulars:
(a) the name of an individual, company or firm represented in
a special or particular manner;
(b) the signature of the applicant for registration or of some
predecessor in his business;
(c) an invented word or words;
(d) a word having no direct reference to the character or
quality of the goods or services not being, according to its
ordinary meaning, a geographical name or surname; or
(e) Any other distinctive mark.
Name..Represented in a Special
..Manner
• Fanfold Ltd’s Application (1928) 45 RPC 325,CA
…must be capable of distinguishing the goods of
a trader..
• Kwik Copy [1982] RPC 102 Chancery Division

… the mark as a whole does represent the name
of the applicant in a manner which is out of
common so as to strike the eye as peculiar and
thus render it distinctive
Invented Word
• Tarzan Trademark
- Not registrable under trademark. Not
descriptive of the character and quality of the
goods in question
Invented words
• Uneeda TM
- The word invented ..of the advertising department of the
applicant company and was originally intended to be
associated with the picture of an Indian maiden and was
then therefore the name of an aborigine.
- “You need a” = sound remaining identical. Whether it is an
invented words?
- ..An invented word is allowed to be registered as a trade
mark not a reward as a merit but because the registration
deprives no member of the community of the rights which
he possesses to use the existing vocab as he pleases.
- The combination of 2 english words are not invented
words.
Invented words
• Geo Cording Ltd’s Application
• Word Gnidroc is invented or not.
• Disqualified from registration, fails its
distinctiveness, calculated to be deceived.
• The name spelt backward was “Cording”
Invented Word
• SMT Gramophone
- Word “Solio”
- Not convey any meaning, registrable
• Hallgarten’s Application
- Whisqueur
- From Whisky Liqueur. It has obvious meaning,
therefore not an invented words.
Words Having no direct reference
• S10(1)(d)… to the character and quality of the
goods or services not being according to its
ordinary meaning a geograhical name or
surname.
• Descriptive, Laudatory
• Heavenly Trade Mark [1967] RPC 306
- First, the qualifications of a mark proposed for
registration must considered in relation to the goods
on which it is used or proposed to be used…This
principle can be seen to applied in many like”good”,
“best”, “perfect” would be unregistrable for any goods.
- Second, consideration must be given to the questions
whether other traders are likely in the ordinary course
of their business and without improper motive to
desire to use the word upon or in connection with their
own goods.
• Health Trade mark
• “Health” for cocoa and chocolate
• Not allowed – laudatory epithet
• Geographical names
Yorkshire Copper Works (Yorkshire TM)
- Yorkshire is an industrial city
- Important geographical name can never be or
become adapted to distinguish or capable of
distinguishing an individual traders goods no
matter how much use have been made to it.
• Exception for Geographical names
1) The geographical origin is not credible eg North Pole
for bananas.
2) The name refer to a place wholly owned by the
applicant who has de facto monopoly of production
of the goods in that place may be registered on a
minimum of evident with proof of sole ownership
3) Apollinaris for mineral water from a spring of that
name [1907] 24 RPC 436
4) Bourneville (unreported) for chocolate made in a
factory located in a place of that name built by the
philanthropist owner to house his employees
Geographical Indications
• Sabah Tea
• Sarawak Black Pepper
• Labu Sayong
• Menglembu Groundnuts
• Champagne
• Surnames
- Look in the directories.
- Ordinary and therefore it is not registered
Any other distinctive mark
• It must be peculiar that strike the eyes.
• Meaning of Distinctive
• Section 10(2A)
• Section 10(2B)
Section 10 (2A)
• (2A) For the purposes of this section, “distinctive”, in
relation to the trade mark registered or proposed to
be registered in respect of goods or services, means
the trade mark must be capable of distinguishing
goods or services with which the proprietor of the
trade mark is or may be connected in the course of
trade from goods or services in the case of which no
such connection subsists,either generally or, where
the trade mark is registered or proposed to be
registered, subject to conditions, amendments,
modifications or limitations, in relation to use within
the extent of the registration.
Marks which cannot be Registered
• Section 14 (a) if the use of which is likely to deceive or cause confusion to the public or
would be contrary to law;
• (b) if it contains or comprises any scandalous or offensive matter or would otherwise
not be entitled to protection by any court of law;
(c) if it contains a matter which in the opinion of the Registrar is or might be prejudicial
to the interest or security of the nation;
(d) if it is identical with or so nearly resembles a mark which is well known in Malaysia
for the same goods or services of another proprietor;
(e) if it is well known and registered in Malaysia for goods or services not the same as to
those in respect of which registration is applied for:
(f) if it contains or consists of a geographical indication with respect to goods not
originating in the territory indicated, if use of the indication in the mark for such goods
in Malaysia is of such a nature as to mislead the public as to the true place of origin of
the goods; or
(g) if it is a mark for consists of a geographical indication identifying wines, or is a mark
for spirits which contains or consists of a geographical indication identifying spirits, not
originating in the place indicated by the geographical indication in question.
..likely to deceive
• Meaning of deceive
• Intrinsic deception ie the TM itself deceive the
public and it stands by itself
• Deceive the public as to the place of origin,
composition, purpose or any characteristic of
the goods
..likely to deceive
• Orlwoola T.M (1909) 26 RPC – clothing made of
wool
• China Therm TM (1980) FSR 21 – The
composition of the article is made of plastic and
not from china (a fine porceline)
• Hacks’s Application (Black Magic) (1940) RPC 91 –
Sweets but actually a laxative
• Mc Glennon’s Application (1908) 25 RPC – A
postcard that have a maple leave. Which may
deceive public that it is from Canada
…cause confusion
• Edwards Application (1945)63 RPC 19
- Applicant – JARDEX for disinfectants
- Opposed proprietor for JARDOX for extracts of
meat.
- Held : Although not same description but
serious consequences arising through
mistakes or negligence could not be ignored.
Both application refused
..contrary to law
• Registration of a devise that has copyright may
be contrary to law because it confers exclusive
rights.
• Karo Step Trade Mark [1977] RPC 255

-
..scandalous or offensive matter
• Hallelujah TM (1976) RPC 695 – articles of
clothing for women including underclothing
- The word had an overwhelmingly religious
significance and the use of the word for
undergarment would be contrary to morality
• Jesus TM – in respect of men’s, women’s and
children’s clothing
• OOMPHIES for ladies shoes. It has a reference
to sex appeal.
…not be entitled to protection by any
court of law
• Oscar Trade Mark
• Register device mark consisting of the word
OSCAR adjacent a silhouette of a statue for radio
tv and recording apparatus and record players,
tape recorders and cassettes.
• Held: as the applicant was not the owner of the
copyright in the silhouette, they could not claim
to be the proprietor of the mark and were not
entitled to apply for registration of the mark.
…..might be prejudicial to the interest
or security of the nation
• E.g Ayah Pin
Section 14(d) and (e)
• Section 14(e) should be read as follows:
-if it is (identical with or so nearly resembles a mark
which is well-known in Malaysia for goods or services
not the same as to those in respect of which
registration is applied for:
Provided that the use of the mark in relation to those

goods or services would indicate a connection between
those goods or services and the proprietor of the well
known mark, and the interests of the proprietor of the
well known mark are likely to be damaged by such use.
Well known Marks
• See regulation 13A and 13B for criteria of a
well-known mark
• Section 70B. Protection of well-known
trademarks
Marks which cannot be registered :
S14 (1)
• Geographical Indications
• See Section 14(f)
• Section 14(g)
• Section 14A
Definition of GI
• Under Geographical Indications Act 2000, GI
means an” indication which identifies any
goods as originating in a country or territory
or region or locality in that country or territory
where a given quality, reputation or other
characteristic of the goods is essentially
attributable to their geographical origin”
Geographical Indication
• Wines and Spirits – Port, Sherry, Champagne,
Bordeaux, Cognac, Eger
• Manufactured Products – Bohemia
• Natural products – Evian, Havana, Darjeeling,
Ceylon,
Marks which cannot be registered
Other Prohibitions
• Section 15 and Rules made thereunder
• Section 16 – If trade mark consists of or
include the name or representation of another
person, living or dead. Need consent of that
person or Personal representative
• Section 33(4) – names of chemical or
compounds
Prohibition under Section 19
• Identical trade mark
The Approach to take in Deciding
Conflicts between Marks
• Luxmoore L]. in Aristoc v. Rysta (1943) 60 RPC 87 in a dissenting
judgement which was fully supported on appeal in the House of Lords
(I945) 62 RPC 65v
• "The answer to the question whether the sound of one word resembles
too nearly the sound of another so as to bring the former within the limit
of section l2 of the Trade Marks Act 1938 must nearly always depend on
first impression, for obviously a person who is familiar with both words
would neither be deceived nor confused. It is the person who knows the
one word and has perhaps an imperfect recollect of it who is likely to be
deceived or confused. Little assistance, therefore, is to be obtained from a
meticulous comparison of the two words, letter by letter, and syllable by
syllable, pronounced with the clarity to be expected from a teacher of
elocution The Court must be careful to make allowance for imperfect
recollection and the effect of careless pronunciation and speech on the
part not only of the person seeking to buy under the trade description but
also of the shop assistant ministering to that person's want."
• Luxmoore L.J. in Aristoc v. Rysta (1943) 60 RPC 87 in a dissenting
judgement which was fully supported on appeal in the House of
Lords (1945) 62 RPC 65.
• .. The doctrine of imperfect recollection has been applied to device
marks in a number of decisions made, or approved by, the Court. In
applying the dictum of * Luxmoore, L.J. it is important to strike the
right balance. It is the ordinary person with an ordinary memory,
who might be a customers for the goods concerned, who has to be
considered. One is not concerned with those who have it
photographic recall, nor, as one judge put it, with "a moron in a
hurry".
• "goods/services of the same description"
• Jellinek's Application (1946) 63 RPC 59
• Application for "PANDA" together with a device of a panda in
class 3 for shoe polish. Opposition by the proprietor of a
similar 'Panda" mark registered in respect of shoes. They
alleged that shoe polish was within the same description of
goods as boots and shoes, and that a“ number of shoe
manufacturers marketed shoes and shoe polish under the
same mark. Therefore possibility of confusion if the same
mark was registered by the applicant. '
• Held that shoes and shoe polish were not goods of the same
description and the registration would not offend section 12
• "goods/services of the same description"
Jeilinek's Application (1946) 63 RPC 59 ,
• The three criteria to consider
• I. the nature of the goods
• 2. their uses
• 3. the trade channels through which they pass
on their way to the consumers
• Note: no one of these considerations is
conclusive‘ in itself.
Effect of ss 19(3) and (4)
• Purpose of the section is to relax the strict rule under
ss. 19(1) and (2)
• Also the section is applicable only in cases of co-
pending applications when neither of the marks has
been registered.
• Two methods of settling the conflicting claims are
permitted under the section, one is to refer the
matter to the court and the other is by agreement
between the parties subject to approval of Registrar
or the Court.
Effect of ss 19(3) and (4)
• Bainbridge & Green's Application (1940) 57 RPC 248
• Separate applications were made by 2 companies to register
very similar marks consisting of the words "Lion Brand" in
respect of fish. Both marks were already in use. One
applicant's area of use was larger than and included the
other's.
• The court was loath to apply s. l2(2) (Malaysia S. 20) because
of the strong likelihood of confusion against public interest.
However it was prepared to register both marks once
agreement had been reached between them to separate‘ the
areas in which each proprietor would use his
• Example of the exercise of the power to demand agreement
between the parties.
Problems of honest concurrent
user
• See section 20. Concurrent use.
• - the section allows registration to be obtained in a situation
which would fall foul of s.l9(l), i.e., of confusingly similar
marks for the same goods or the same description of goods
where "honest concurrent use" or "other special
circumstances" exist which makes it proper; for the court or
the Registrar to allow registration.
• - conditions and limitations may be imposed the later
registration, for example,. as to certain geographical area only
• - if the rival claims arise in contemporaneous applications,
then the provision of s. 19(2) applies.
user
• Section 20:
• - if one of the marks is already registered when the other is
applied for, again the first question must concern : priorities,
in this case whether the later applicant should seek to have
the earlier registration removed from the register. If there is
no case for that, then it is for the Registrar to consider
whether he can permit the second mark to be registered, if
necessary, subject to conditions and limitations (but in such a
case, there is no room to impose conditions on use of the
mark already registered).
• - onus of justifying registration lies on the applicant
user
• Pirie's Application (1933) 50 RPC 147 at 159-160
• Application to register ABERMILL BOND for paper was allowed
in spite of an existing registration HAMMEBMILL for paper.
Applicant had used a trade larger than that of HAMMERMILL.
• The factors referred to by Lord Tomlin in the above case’ are
commonly taken as the starting point:
• 1. what degree of likelihood is there that confusion will arise
from use of the two marks? If it is only slender that is a strong
reason for allowing registration "
• 2. was the original choice and subsequent use of the mark
honest?
user
• Knowledge of the opponent's mark at the time that it is
selected is an important but not decisive indicator of lack of
honesty. If usage is begun in knowledge of the other mark and
of objections from its owner, but in the belief that there will
be no confusion, the conduct will likely be held honest.
• 3. how long is the period of use? 6 years was sufficient in the
Pirie's case, but the Registrar normally expects 7 years as a
minimum. Exceptionally, where the applicant's use was very
substantial and there was no evidence of use by the
opponent, 2 years and 10 months sufficed - see Granada TM
(1979) RPC 303.
user
• 4. was there evidence of confusion in actual use? ( by - It
means of survey evidence and trap orders)
• 5. was the applicant's trade larger than the opponent? An
affirmative answer may assist the applicant, but, in a number
of instances, the fact that his trade is smaller has , not been
decisive against him
Role of Registry
• Trade Mark Registration
• Trade Mark Registration:
- Receives application
- Examines application
- Accept/reject application
- Opposition proceedings
- Registers Trade Marks
- Rectification
• Renewal of registered trade marks
• Maintains Register of Assignment and Registered Users
Flowchart
Application made
to Registrar
(Application date) s
25(1)
Search and
Consideration of
Application Reg 25
Objection / Acceptance subject to

Application not completed within 12
Absolute Acceptance s 25(3) conditions, amendments, modifications or
months due to default of applicant s 29
limitation – s25 (3) and Regs 26-29
Advertisement of
Acceptance of Opposition – s
Acceptance in
Application s 27 28(1) and Regs 37-
Gazette – s 27 and
and Reg 26 51
Reg 33
Registration of
Refusal
Trade Mark s 30
The Exclusive rights
• ' Duration - 10 years from filing — s 32(1)
• Renewal - successive 10 years extensions
• The Exclusive Rights — section 38:
-Section 38(1)(a) rights - The right to prevent
others from using an identical or confusingly similar
mark on goods within the scope of the registration
-Section 38(l)(b) rights - The right to prevent
others from using the registered mark in comparative
advertising (importing a reference)
The Exclusive Rights
• Section 38
• Infringement of a trade mark
Section 38(1)(a) Infringement
• Fabrique Ebe] SA v. Sykt Pemiagaan Tukang Jam etc. [1988] 1 ML]
188
• Zakaria Yatim J. at pg. 191 - requirements to be satisfied by plaintiff
to establish infringement under section 38(1)(a)
1. The defendant used the mark identical with the plaintiffs mark.
2. The offending mark was used by persons who have not been
authorized or licensed by the plaintiff.
3. The defendants were using the offending mark in the course of
trade.
4. The defendants used the offending mark in relation to goods in
respect of which the trade mark is registered.
5. The defendants used the offending mark in such a manner as to
render the use of the mark likely to be taken as being used as a trade
mark.
• Bali Trade Mark [1969] RPC 472; [1969] 2 All ER 812
• ' At page 492, "It is the person who only knows the
one word, and has perhaps an imperfect recollection
of it, who is likely to be deceived or confused. The
court should allow for imperfect recollection and the
effect of careless speech pronunciation not only on
the part of purchasers but also shop assistants." "
• principally from the phonetic similarity of BALI
pronounced "Barley" and BERLEI pronounced
"Burly". The visual similarity of the two marks is
negligible."
• When is a mark confusingly similar?
• The factors to be taken into consideration:
- Customer care
- Imperfect recollection
- The “idea” behind the mark
- pronunciation
- Other trade circumstances
• ' Try to recollect the Nestle Trade Mark
• Reasons for this provision I
• ' Irving Yeast-Vite v. Horsenail (1934) RPC 110
The House of Lords held that a D who sold yeast tablets
in bottles bearing a label with the words "Yeast Tablets,
a substitute for YEAST-VITE" had nevertheless not
infringed the registered trade mark "Yeast-Vite". There
was no attempt to say that the spurious goods were
"Yeast-Vite", so it could not mislead as to the origin of
the substituted goods.
• Use of the Plaintiff‘ s mark in comparative
advertising (importing a reference):
• - The elements to be proved:
- Use of the plaintiff’ s mark
- Use on goods registered
- Use of the plaintiff’ s mark is likely to import a
reference to the plaintiff‘ “
- NB: No confusion as to origin necessary
Bismag Ltd v. Amblins (Chemists) Ltd (1940) RPC 209
The D had put out an advertising pamphlet, attacking the alleged
large profits made by manufacturers of patented medicines and
extolling his own pharmaceutically comparable preparations,
together with comparative prices. In a particular instance, the
words were as follows :
Bisurated Magnesia Tablets Prescription No.7 Bismuthated Mag. Tab *

Analysis: Bismuth Carb. Soda Carb Analysis: (same as hand side)
Magnesia Carb. Excipient
Price Is 3d for abt 50 tablets Price: 30 tablets 6 d, 75 tablets ls
• Bismag Ltd v. Amblins (Chemists) Ltd (I940) RPC 209
• - "Bisurated" was the plaintiffs‘ registered trade mark and it was held that
the defendants by their pamphlet, had infringed under this head, although
clearly it was not a traditional trade mark use as no confusion as to origin
could be caused. However, the defendants had used the plaintiffs‘ mark in
the "trade mark sense" - pg 234 line 26 (see quotation below)
• - Per Sir Wilfrid Greene M.R. at 229-230, “. . .. There can, in my view, two
opinions about this. They are saying as clearly as anything can be said that,
whereas the respondents are prepared to see the various patent
medicines described, they are offering and recommending to the public
remedies of precisely the same composition and precisely the same
virtues at a lower price. ln other words, they are saying that the
respondents’ remedies are exact equivalents of the corresponding patent
medicines, that they are not merely substitutes, but substitutes of the
same composition and the same efficacy.
(Bismag)
• The respondents have not used the registered trade mark of
another persons as indicative of the origin of their own
goods, and in default of this character no case of infringement
could have been established against them under the law as it
stood before the Act of 1938 came into force. It is said,
however, on behalf of the appellants that the respondents‘
use of the appellants’ registered trade. It mark 'Bisurated',
although not directed to indicate the origin of the
respondents’ goods, is nevertheless such as to fall within the
definition of infringement in section 4 of the Act of 1938. This
makes it desirable to examine further the implications of what
the respondents have done in the poster and the booklet by
referring to the appellants’ remedies under their registered
trade mark.
(Bismag)
• Here again the matter does not seem to me to be
open to doubt. The respondents first of all are
using the word 'Bisurated' in a trade mark sense,
that is to say, as indicative of the origin of the
goods in relation to which reference is made to the
trade mark. It is true that the reference is not to
the respondents’ goods but to the appellants’
goods; nevertheless the word 'Bisurated' is used in
a trade mark sense and not in a descriptive sense
as might have been the case if the word had had a
descriptive; as well as a distinctive significance.
(Bismag)
• Moreover, the respondents are using the appellants‘ trade
mark as a convenient method of describing the merits of, the
respondents‘ own goods. They are in effect saying
• ‘You, the public, are no doubt familiar with ’"Bisurated O
Magnesia", and are aware of its virtues; the best method of
describing the virtues of our "Bismuthated Magnesia" is to tell
you that they are precisely the same as those of ‘F "Bisurated
Magnesia" - that is all you need to know. In short, the
respondents are using the appellants‘ trade mark for the
purpose of advertising and compendiously describing the
virtues of their own goods and thus obtained for themselves a
benefit from the reputation enjoyed by the appellants’ goods
sold under and identified by the appellant's registered trade
mark."
Exceptions and Defences
• Honest use of one's own name etc - s.40( 1)(a)
• —Steiner Products Ltd v. Willy Steiner [1964]
RPC 356 where the D sold products in a get-up
similar to the Plaintiffs but was using his own
full name upon them. The court held that s. 8
was inapplicable because the D was not truly a
bona user of his own name.
• Honest use as a description of character or
quality - s. 40(1)(b) Eclipse Sleep Products Ltd
v. The Registrar of TM (1957) 99 CLR 300
• The proprietor's mark was a composite mark,
consisting of the word "Springwall" and a
surrounding device, the High Court held that
the section would protect the bona use by
other traders of the words "Spring" of "wall"
to describe the character or quality of their
goods
• Honest use as a description of character or quality - s. 40(l)(b)
• Newton Chambers & Co., Ltd. v. Neptune Waterproof Paper
Co., Ltd (I935) 52 RPC 399
• The Plaintiffs were the registered owners of a trade mark
"Izal" registered in class 3 in respect of chemical substances
prepared for use in medicine and pharmacy. They also
claimed user of the mark "lzal" on their disinfectant fluids and
on their toilet rolls which were medicated with lzal.
• The Defendant sold toilet rolls in wrappers with the words
"Medicated with Izal" on them. The words "medicated with"
were in small letters compared with those of the word "Izal".
• Honest use as a description of character or quality - s. 40(1)(b)
• Newton Chambers & Co., Ltd. v. Neptune Waterproof Paper
Co., Ltd (1935) 52 RPC 399 J, In defence the defendant
claimed that "Izal" was not registered in respect of medicated
toilet papers. Further, they claimed the right to use the words
"lzal" and "medicated with" in a diamond shape as being a
bona description of their goods, which they had in fact
medicated with Izal disinfectant fluid.
• Held: The defendants‘ use of the mark "lzal" on their toilet roll
wrappers was an infringement of the Plaintiffs’ trade mark
"lzal" because the defendants’ wrapper did not constitute a
bona description of the character or quality of the goods
within the meaning of section 44.
• Right of continued user - s. 40(l)(c) The word
"continuously " must receive a reasonable
business interpretation. Possibly the use of a
mark may still be regarded as continuously, in
spite of some brief period when it had not
been used for it must be borne in mind that
even during the period when the owner is not
applying his mark, goods previously marked
may be on sale by dealers.
• Mouson v Boehm [1884] Ch D 398
• In 1874, the defendant, who carried on business as a soap
manufacturer invented a trade mark for soap intended to be
exported“ to the English colonies. The trade mark consisted of a
kangaroo, with the word "Colonial" enclosed in a ring. Large
quantities of the soap with this trade mark was sent to agents in
England for exportation to Australia From 1876 until 1882, the
manufacture and“ sale fell and practically ceased.
• The plaintiffs were soap manufacturers who also carry on a large
business with the English colonies through their agents in England.
They invented a trade mark which was practically identical to the
D's. In 1880, they obtained registration of the mark in England
(completely in ignorance of the D's mark)
• When in 1882, the P sued the D for infringement of his mark,
the court held that the D had not abandoned his mark, and an
injunction against him was refused.
• Per Chitty J at page 406, "Here it appears to me that there was
no absolute non-user for any sufficient time, taken in
connection with all the circumstances, to show an intention to
abandon. A man who has a trade mark may properly have
regard to the state of the market and the demand for the
goods; it would be absurd to suppose he lost his trade mark
by not putting more goods on the market when it is glutted.
There was some user, and the result therefore is that Boehm
has not abandoned his trade mark."
• Use on the genuine goods - s. 40(l)(d)
• The proprietor can prevent the use of a deceptively;
similar mark on goods other than his goods.
However, he cannot prevent the use of his own mark
upon the "genuine goods". This is the application of
the "exhaustion theory", which restrict the
monopoly conferred upon the proprietor so that he
cannot control further dealings with the marked
goods once the mark has been applied by him or by
his registered user and the mark had not been
subsequently removed or obliterated.
• Express or implied consent to use the mark - s. 40( l )(dd)
• Winthrop Products Inc & anor v. Sun Ocean (M) Sdn Bhd & anor [1988]
ZMLJ 317 — Panadol
• “In my judgment, neither of the plaintiffs may complain of or object to the
putting into the market in the UK or elsewhere of products by their related
companies of the similar product bearing the same trade mark and that
thereafter they can be said to have impliedly consented to their doing so,
so that the holder: from time to time of the goods acquires the absolute
ownership of the goods including the right to sell the goods in any part of
the world in the same condition in which they were disposed of.
Accordingly, both the plaintiffs in the present case have impliedly
consented to the use of the trade mark by the‘ manufacturers of the blue
pack Panadol in the UK which had found its way into the ownership of the
defendants.”
• Components and spare parts - s. 40( l)(e)
• This section is merely a statutory extension of
the; common principle that a trader could not
be prevented from using a bona description of
his goods, Example: A manufacturer of spare
parts meant as replacement parts for Honda
cars can describe his“ parts as “Parts for
Honda cars” etc
• Concurrent rights - s. 40( I)(f)
• Eli Lily v. Chelsea Drug [1966] RPC 14
• The (plaintiffs had registered "V-CIL-K" which they used for their bran of penicillin
V potassium. The defendants were the registered proprietor of the mark
"ECONOCIL-VK".
• The defendants actually used their mark in the form "econoCIL-VK (i.e., the first 5
letter only in small case style and 4 times smaller). The plaintiffs sued for
infringement and sought an injunction to the defendants from infringing their
trade mark and passing off.
• Per Waller J at pages 17-18, “I first approach the question by just looking at the
words as printed in the literature. In my so long as the word ‘econoCIL-VK’ is
printed with the letters CIL in large letters— I have not but it was said by Mr that it
was four times the height of the small letters, but merely by looking at those, so
long as it is printed in that way — there is every likelihood of confusion between it
and the mark V-CIL-K. The effect of the printing is to emphasize CIL-VK, and this is
so like VCIL-K as to be confusing.
• Concurrent rights - s. 40( l)(f) Eli Lily v. Chelsea Drug [1966] RPC 14
• Per Waller J at pages 17-18, “It is then submitted on behalf‘ of the
defendant company that they were using their trade mark and that
this fact is a defence both to the claim for infringement and the
claim for passing off.
• It seems to me that it is a question of fact for the court to decide
whether the variation is so great as to involve a departure from the
registered trade mark. In my opinion, the variation here is of that
magnitude. If the defendant company had applied to register the
mark as printed by them on their leaflets and labels, it is
inconceivable that the plaintiffs would not have opposed the
application. So much for this contention in relation to
infringement.”
Validity, correction and
Rectification
• Section 36
• Section 37
• Section 45
Rectification
• Rectification of the Register
• see: S. 45
• Besides the other specific provisions concerning removal of a registered trade mark (see later -
eg non use etc) the present provision is a general provision giving power to the Court to rectify
the register extending in particular to any case where an entry in the Register was wrongly
made or wrongly remains there
• "Person aggrieved"
• Section 45 provides that before the rectification provision can be invoked the applicant must
be a "person aggrieved", This phrase has been interpreted to mean that locus standi is
attributed to persons charged with infringement of or passing off the mark question as well as
to trade competitors whose business interest are being damaged or limited by the continuance
on the Register of the invalid mark The classic definition by Lord Herschell all page 7 and 8 is
found in
• Powell's Trade Mark (I894) RPC RPC 4
• "Whenever it can be shown, as here, that the applicant is in the same trade as the person who
has registered the trade mark, and whenever the trade mark if remaining on the register, or
might limit_the legal right of the applicant. so that by reason of the existence of the entrv on
the Register he could not lawfuIly do that which but for the existence of the mark upon the
egister he couid lawfully do, it appears to me he has a locus standi to be heard as a person
aggrieved."
Rectification
• The interpretation of this definition was considered
in Lever Bros v. Sunniwite Products (1949) 66 RPC 84
• Infringement action. The plaintiffs were proprietor
ofthe mark "Sunlight" for soap, substances for
laundry use, detergents, perfumed soap, perfumery,
cosmetics, preparations for the hair, and dentrifices.
The defendants were sued for having use the mark
"Sunniwite" on soapless detergent powder. They
counterclaimed by way of defence to rectify the
register by striking out goods other than soap on the
ground of non-use. The plaintiffs use of the mark had
been on a large scale but on soap only.
Rectification
• Lever Bros v. Sunniwite Products (1949) 66 RPC 84
• It was held that the mark had been infringed. As regard the
conterclaim to remove perfumery, cosmetics, preparations for
the hair, and dentrifices, it was held that a person aggrieved
must be trading in goods of the same description. Here the
applicants were found not to be persons aggrieved because
the goods they traded in were not of the same description as
perfumery, cosmetics, preparations for the hair, and
dentrifices, their sole activity was confined to soapless
detergent. Furthermore the e defendants had not shown that
they had the intention to extend their trade to perfumery,
cosmetics, preparations for the hair, and dentrifices.)
Person Aggrieved
• A stricter test in Malaysia
• - By s. 45 the High Court, on the application of any “person
aggrieved” by, inter alia, “any entry made in the register
without sufficient cause or any entry wrongfully remaining in
the register”, is empowered to “make such order for
expunging or varying such entry as it thinks fit”
• The “liberal approach” in Fazaruddin Ibrahim v. Parkson
Corporation Sdn Bhd [1977] 4 ML] 360 , per Abdul Malik lshak
J, at p. 369: “The phrase ‘person aggrieved’ in s. 45(1)(a) of
the Act should it be construed liberally. In my judgment, it
includes any person whose own application for registration is
obstructed by the opposing party in the suit ...”
Person Aggrieved
• In Mclaren International Ltd Lim Yat Meen [2009] 4 CL] 749, the
Federal Court overruled Fazaruddin and held that “a person whose
application for registration of his trade mark is jeopardised by s.
19(1) the Act cannot, without more, qualify as a person aggrieved,
because he could be a mere busybody.”
• - The Federal Court went on to hold that an “aggrieved person” is: -
[A] person who has used his mark as a trade mark - or who has
genuine and present intention to use his mark as a trade mark - in
the course of a trade which is the same as or similar to the trade of
the owner of the registered trade mark that the person wants to
have removed from the register?’ (see para. 22)
• ' Therefore, Mclaren etc held not to have locus standi to apply to
remove a prior registered mark from the register.
Marks Cannot be Registered
• The Agricultural and Processed Food Products Export Development Authority of
India (APEDA), Tamil Nadu Agricultural University and Ors v Syarikat Faiza Sdn
Bhd Case D-25IP-1-2010
• - The Ponni Rice case name of a rice variety cannot be validly registered as a trade
mark
• - Ponni rice was first developed by Tamil Nadu Agricultural University. The
popularity of Ponni rice can be attributed for its low glycemic index, which helps in
the control of diabetes, obesity & cholesterol.
• ~ Many rice dealers import Ponni rice & sell it under different names‘ One of
them is, Syarikat Faiza Sdn Bhd which has been importing Ponni rice from India
and distributing it in Malaysia as Herbal Ponni Rice, under the brand name, ‘Ta j
Mahal, Ponni.”
• - On January 2006, Faiza obtained registration of ‘Ponni’ as a trademark for rice
in Class 30 of the Malaysian Trademark Act.
• - Faiza then sent legal notices to other importers asking them not to use the word
'Ponni” to describe their product.
“Ponni”
• In 2008, it obtained an injunction against a dealer, Dagang Mewah,
distributor for Wisebridge, an importer who marketed the rice variety
under the brand name ‘Agra’ from using the term ‘Ponni’. The court
passed an ex-parte order of injunction in Faiza favour on May“I 12, 2008.
• - On Jan 22, 2010, the Indian Agriculture Export Promotion Agency, along
with Tamil Nadu Agricultural College, lndian farmers and two exporters
filed an action to have the mark “Poni” removed from the Register under
section 45 as an entry made on the Register without sufficient cause
and/or an entry wrongfully remaining in the Register.
• Justice Azahar Mohamed held that the term ‘Ponni’ cannot be exclusively
used by Faiza since the term describes a rice variety Tamil Nadu and is
recognized by customers as such. Exclusive use of the term would lead to
consumer confusion Therefore the trade mark was ordered to be
expunged from the Register.
“Ponni”
• - I conclude that ‘PONNI’ is directly descriptive of a particular
variety of rice originating from the Tamil Nadu Region in
Southern India. The word PONNI does not qualify for
registration under section 10(1) ((1), as such registration
would prevent others from legitimately using PONNI as a
descriptor for a particular variety of rice originating from the
Tamil Nadu region. In my view, the word PONNI, as on
6.6.2000, had become known in the trade and consumers, as
the name of a variety of rice from Tamil Nadu. PONNI has
become established as a varietals name for rice and could not
have been distinctive solely of the Respondent’s goods as on
6.6.2000. I therefore conclude by saying that the name PONNI
does not qualify for registration under Section 10(1) ((1) of
the Act.”
Marks become Generic
• Section 33
• If a mark is used and regarded as a trade mark, it
indicates the origin of the article whereas if it is
generic, the word would indicate or denote the name
of the article itself.
• In such a situation, it would be unfair to allow the
registered proprietor to have exclusive use of that
word.
• Hence the mark should be removed from the register
How‘? — by means of the combined effects of
section 33(4) and section 45
Loss of Registered TM Through
Non-Use
• Section 46
• Under s. 46(1), rectification can be obtained either:
• a. if the applicant for registration never had bona
intention to use the mark and in fact did not so use,
in relation to the registered goods, up to one month
prior to the application to rectify. or
• b. if up to one month prior to the application to
rectify, there has been no bona use for a continuous
period of 3 years in relation to the registered goods.
Exception to the Non-Use Provision
• Section 46(2)
• the Court or the registrar may refuse an application
made under subsection (1) in relation to any goods if
there has been, before the relevant date or during
the relevant period, as the case may be, use in good
faith of the trade mark by the registered proprietor
of the trade mark for the time being in relation to
goods of the same description, being goods in
respect of which the trade mark is registered."
Exception to the Non-Use Provision
• Section 46(4)
• “An applicant is not entitled to rely for the
purpose, of paragraph (b) of subsection (1) or
for the purpose of subsection (3) or (3A) on
any failure to use a trade mark if failure is
shown to have been due to special
circumstances in the trade and not to= an
intention not to use or to abandon the trade
mark in relation to the goods to which the
application relates.”
Godrej Sara Lee Ltd v Siah Teong
Teck (non-Use)
• In Godrej Sara Lee Ltd v Siah Teong Teck the applicant filed an
application for registration of the trademark GOODKNIGHT
for, among other things, mosquito-repellent mats and
coils.The registrar of trademarks objected to the application
on the grounds that an identical trademark had been
registered for the same goods by the respondent. The
applicant then filed an application to remove the cited mark
under Section 46(1)(b) of the Trademarks Act 1976 on the
basis that the cited mark had not been used by the
respondent for a continuous period of three years up to one
month before the application to remove the cited mark was
filed (ie, between January 5 2004 and January 5 2007).
Non Use- Contd
• In allowing the application, the High Court affirmed an earlier
High Court decision that computation of the period of non-
use commences after the trademark is entered in the
register.(2) The High Court found that there was no use of the
cited mark by the respondent during the relevant period. The
respondent’s claim that there was use of the cited mark by a
third party, Sri Dapat Sdn Bhd, in a purported application to
the Pesticides Board was dismissed as the alleged use was
outside the relevant period and was not use by the registered
proprietor or registered user of the trademark. Further, the
High Court said that use must be use on or in relation to the
goods, including affixing the mark to goods or using it in an
advertisement, circular or catalogue. This was not the case
here.
Non Use- Contd
• The respondent also sought to rely on the exception provided under
Section 46(4) of the Trademarks Act, which provides that removal under
Section 46(1)(b) will not be granted if non-use is due to “special
circumstances in the trade”. The respondent claimed that it had not used
the cited mark because use would have resulted in a conflict of interest
with third parties as Sri Dapat Sdn Bhd had entered into agreements with
third parties to manufacture and sell other brands of mosquito coils. The
High Court dismissed this ground as baseless. The High Court first stated
that such conflict of interest did not constitute “special circumstances in
the trade”, which must be circumstances which are peculiar, abnormal and
external. Non-use of this nature was a purely commercial choice and was
not influenced by any external circumstances. The court’s second
argument was that the purported conflict relied upon by the respondent
was unrelated to the respondent as the agreements were entered into by
Sri Dapat Sdn Bhd.
Non Use- Contd
• Finally, the respondent suggested that the High
Court’s power to remove a trademark under Section
46 is discretionary by drawing an analogy with the
High Court’s power under Section 45. In dismissing
this proposition, the High Court stated that unlike
Section 45, the wording of Section 46 does not use
the words “it thinks fit” and is thus more
straightforward - if it is shown in the facts that the
trademark which is the subject matter of the action
has not been used during the relevant period, the
trademark ought to be removed.
Non-Use (When time starts to run)
• Recap: Section 46. Provisions as to non-use of trade mark.
• (1) Subject to this section and to section 57, the Court‘ may,
on application by a person aggrieved, order a trade mark to
be removed from the Register in respect of any of the goods
or services in respect of which it is registered on the ground -
• (a) …………….;or
• (b) that up to one month before the date of the application a
continuous period of not less than three years had elapsed
during which the trade mark was a registered trade mark and
during which there was no use in good faith of the trade mark
in relation to those goods or services by the registered
proprietor or registered user of the trade mark for the time
being.
• When does the three year period start to run‘?
• Problem arises because there could be a possibility
of two different starting points. The first being from
the date of application and the second being from
the date from which the mark was actually
registered.
• Why problem arises? - Because. section 30 (l)
provides that "the trade mark so registered shall be
registered as of the date of application for
registration."
• When does the three year period start to run?
• Bon Martin Trade Mark [1988] RPC 553 - in the Trade Mark
Registry before Mr R. Egan.
• Application to rectify the Register by removal of the trade
mark on the ground of non-use.
• Held that "Registered trade mark, was defined in section 68 of
the Trade Marks Act 1938 as meaning " a trade mark that is;
actually on the register."
• The period of five years required by section 26(l)(b) therefore
ran from the date that the trade mark was registered rather
than the date of application for registration. The application
for rectification failed since the trade mark had not been a
registered trade mark for five years - see page 55 8
• When does the three year period start to run?
• Note: The -Malaysian provision, like the UK provision,also
reférs to " the mark was a registered trade mark"
• "Registered trade mark" is defined in section 3 (1) as "a trade
mark which is actually on the register."
• Bon Martin Trade Mark [1988] RPC 553; [1989] RPC 537 High
Court-Chancery Division - agreed with the Registrar's decision
on the date to calculate the five year duration - see page 538-
539
• Industria De Diseno Textil, Sa v Edition Concept Sdn Bhd {2005] 3 MLJ 347
• The plaintiff applied for registration of the trade mark in Malaysia on 3 August
1998. As at that date, there was no prior use‘ or application by any other party
for the same mark in the same class of services. The mark was subsequently
registered and placed on the Register of Trade Marks on 5 February 20 2.
• The defendant, however, argued that they had since September 1999 used
and/or promoted and made their mark 'ZARA' well- known in Malaysia. They
also contended that, the use of the mark ‘ZARA’ by them was before the
approval of the registration of the plaintiffs mark on 5 February 2002 and prior
to the use of the ‘ZARA’ mark by the plaintiff in Malaysia
• On the above premise, the defendant filed an application for am order to set
aside and expunge the plaintiffs trade mark ‘ZARA’ from the Malaysian
Register of Trade Marks. The defendant relies on s 45( l2(a) of the Trade
Marks Act 1976 (‘the Act’) read together with s l4 l)(a) and (d) of the Act; and
also s 46(l)(b) of the Act.
• lndustria De Diseno Textil, Sa v Edition Concept Sdn Bhd
[2005] 3 MLJ 347, per Ramly Ali J:
• 33 The defendant in their submission, included a ground of
‘non use' of the mark under s 46(I)(b) of the Act as a new
ground fur rectification of the Register.
• 34 For s 46(l)(b) to have any application, the trade mark must
have not been used for a continuous period of three years
plus one month as at 3 March 2004, the date the application
for rectification was filed by the defendant. The relevant
period of ‘non-use‘ would be from 3 February 200] (ie
approximately three years and one month prior to the
application for rectification).
• lndustria De Diseno Textil, Sa v Edition Concept Sdn Bhd [2005] 3
MLJ 347, per Ramly Ali J:
• 35 Section 46( 1 )(b) provides for a continuous period of not less
than three years during which the trade mark was a registered
trade mark
• 36 Section 3 of the Act provides that a registered trade mark means
a trade mark which is actually upon the Register. In the present case
the plaintiffs trade mark ‘ZARA’ was actually entered on the
Register on 5 February 2002, Therefore, the period of three years
under s l)(b) should run from the date of actual registration (on 5
February 2002) and not the date of application (on 3 August 1998).
k 37 As to when the three years period is to start, either from the
date of application of the registered mark or the date the mark is
actually placed on the Register,
• lndustria De Diseno Textil, Sa v Edition Concept Sdn Bhd [2005] 3 ML] 347,
per Ramly Ali 1:
• 38 Reference was made to the English case of Bon Matin TM [1989] RPC
537 where, in interpreting the corresponding UK legislation on removal of
trade mark for ‘non-use‘ the court found that on a construction of the
relevant wordings of the UK Trade Marks Act 1938, in particular s 68
(which is pari material with our s 3), a registered trade mark is ‘a trade
mark which is actually upon the Register‘, and therefore for removal for
‘non-use‘, the mark must not have been used in good faith for not less
than three years from the date it was actually placed on the Register, and
not for the date of application for registration. The learned author of
Kerly's Law of Trade Marks and Trade Names, (l2th Ed) at p 192 has also
expressed the view that the relevant period would seem to begin with the
actual date of making the entry on the Register
• ' lndustria De Diseno Tcxtil, Sa v Edition Concept Sdn Bhd [2005] 3 MLJ 347, per
Ramly Ali J:
• - 39 The defendant on the other hand is reCl‘ying_on the Australian case of
Hunter Douglas Australian Pty Lt v Perma Bhands (1969) 122 CLR 49, which
states that the three years period may start to run before the mark is actually
on the Register -- ie the date of application for registration. The court is of the
view that the decision on that case ( Hunter Douglas) may not be agplicable in
interpreting our 5 46(l)(b) of the Act and the definition o the words ‘registered
I; trade mark‘ in s 3 of the Act. The laws or statutory rovisions under which the
decision in Hunter Douglas was rendered) differ which the decision in Hunter
Douszlas was rendered differ significantly from the UK and Malaysia provisions.
Both the UK and Malaysia laws, in addition to deemin the date of application of
the trade mark as the date of registration (gas does the Australian legislation),
also additionally defines a registered mark as ‘a mark w ich is actually on the
Register’. These additional provisions are not present in the corresponding
Australian legislation. The relevant Australian section mere y reads ‘a
trademark which is registered under the Act’.
• - lndustria Dc Discno Textil, Sa v Edition Concept Sdn Bhd [2005] 3 ML]
347, per Ramly Ali J:
• - 39 The case of Hunter Douglas therefore, while correct in its own
right, should not be applicable to the Malaysian position. The UK Court
in Bon Matin TM in fact fully considered the case of Hunter Douglas and
distinguished it, on the basis of the differences in the wordings of the
respective Acts. As the Malaysian Trade .. Marks Act 1976 is essentially
identical to the UK Trade Marks Act 1938, the decision in Bon Matin TM
is therefore preferred, with the relevant date to calculate the three
years period of ‘non-use’ to run from the date the X mark was actually
entered on the Malaysian Register of ‘R Trade Marks, which (in the
present case) was at the date of the issuance of the certificate of
registration on 5 February 2002, and not form the date of application
for registration on 3 August 1998
• Industria Dc Discno Textil, Sa v Edition Concept Sdn Bhd [2005] 3
ML] 347, per Ramly Ali J:
• 40 Following the above calculation, the required tl1ree years period
of ‘non-use’ pursuant to s 46(1)(b) as alleged by the defendant is
not fulfilled, as not only has there not been a continuous period of
three years from the date of its actual registration during which the
mark has not been used, the plaintiff has started using the mark 10
months a before the rectification proceedings were filed by the
defendant (encl 13).
• 41 Therefore, on that ground, the court is of the view that the
defendant has failed to substantiate their claim for rectification of
the plaintiffs trade mark ‘ZARA’ under s 46(l)(b) of the Act and the
application must fail.
Civil and Criminal Proceedings
• Civil Proceedings —
-Infringement of RTM:
-Section 38
-Section 39
-Defences section 40
—Passing Off action
• Criminal Proceedings
-Section 81 TMA 1976
-Trade Description Act
Remedies
• Under civil action: -
- injunction, including interlocutory injunction
–damages
- account of profits
—delivery up or destruction
Under criminal prosecution:
- Fines and/or Imprisonment
Who Can Sue to Enforce Rights
Registered Trade Mark
• - The owner — s 35(1) and any registered user,
if the owner, on request, had not sued within
2 months s 51(1)
Unregistered Trade Mark
• The owner of the goodwill
• S - Subject matter protectable
Mark for goods or services
• C - Criteria to be satisfied
Satisfies ss. 3. I0 and does not fall under ss 14 and 19 (subject to 20)
• O - Ownership
– The registered proprietor is the owner
– Who can sue? - The owner - s 35(l) and
- any registered user, if the owner, on request, had not sued within 2
months s 51(1)
• R — Rights infringed Section 38(l )(a) - “use of proprietor's mark as a trade
mark“, Section 38(b) or (c) - Comparative advertising, “importing a
reference"
• E — Exceptions and defences –
Section 40(l )(a) to (f),
Section 33 trade mark becoming generic or descriptive ,-
Section 46 — non use of a trade mark ‘
Section 45, 37 - rectification of trade mark - “aggrieved person"

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REGISTERED TRADE MARK LAW IN

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