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J.L
CHAPTER I1.1
1.2
CHAPTER II
CHAPTER III
3.1
CHAPTER IV
4.1
4.24.34.4
CHAPTER V
5.1
5.2
5.3
5.4
CHAPTER VT
6_1
6.2
- TABLE OF CONTENTS
INTRODUCTION
Definition of LawClassification of Law7.2.7 Public Law7.2.2 Intemational LawL.2.3 Private Law
CYBERSPACE
IntroductionDisadvanges of Cyberspace
THE SOURCES OF MALAYSIAN LAW
Written Law3.1.1 The Federai Constitution3.7.2 State Constitution3.1.3 Legislation3.1.4 Subsidiary LegislationUnwritten Law3.2.7 English Law3.2.2 Judicial Decisions3.2.3 Customs
COPYRIGHT
IntroductionCopyright InfringementWorks Eligible for ProtectionFair Use Doctrine4.4.1 Factors in Determining Fair Use
PRIVACY
IntroductionWorkplace PrivacyDefinition of DataTransborder Data Fiow (TBDF)
TRADEMARK
IntroductionThe knportant of Trademark Registration
*.
77
17
18
18
18
2A
21
27
22
24
24
6.36.4
6.s
CHAPTER VII
7.1
7.2
7.3
7.4
LAW CASES
REFERENCES
Types of Trademark in MalaysiaDomain NamePassing-Off
DEFAMATION
IntroductionElements of Proof Required for LibelSlander Per Se
Immunity for Service Provider (Sec.230 - CDA 1996)
24
29
30
32
32
34J3
36
Introduction - Revised 7 /5 / 14
CIIAPTER I
INTRODUCTION
1.1 Definition of Law
. To the layman (orang biasa), law is understood as being a general
rule of conduct.
. I-aw can be defined as *A body of enforcement rrles governing
relationships among individuals and between individuals and theirsociety."
e In other words, law consists of the rules recognized ald acted on
by courts ofjustice.
o In short, law may be defined as a body of rules which are enforced
by the State.
. I-aw aims to maintain justice in society-
1.2 Classification of Law
1.2.L Public Law
individuals and the State.
F Consists of Constitutional Law and Criminal Law-
the State. It deals with questions such as supremacy ofParliament and rights of citizens. It also covers areas
dealing with state and federal powers.
comrrritted by individuals against the State, such as
murder, cheating, criminal Lrreach of trust, forgery, causinggrievous hurt, theft, robbery and counterfeiting-
Introduction - Revised 7/5/14
o criminal law imposes on individuals the obligation notto commit crimes.
o Purpose - to punish the wrongdoer-
o Punishment - fine, imprisonment, caning and deathpenalty.
o E.g. Penal Code, Dangerous Drug Act
L.2.2 International Law (law of the country)
people to ensure peace and harmony.
the countries in the world.
(agreements);
o Once ratified, the government would conform with theconvention and act in accordance with the treatv-
o The country regulated by the signing of treaties andagreements between member of the countries. E.g.
" United Nations treaties and conventions.
o E-g. punishment for interrrational terrorism.
o Also covers the area of space law and satellite, the law on
international trade, the law on humal rights, etc,
and Private international I-aw-
{Relates to State / Countries).
Introduction - Revised Z /S / 14
municipal law (the law of the State or Country), as a resultof which in every country there will be a different version ofit. It consists of the rules that guide a judge when the laws
of more than a country afrect a case {Relates to individualsgoverned different laws)
L.2.3 Private Law-(also knoun as Ciuil Lailrl
Private law is concerned with matters that affect the rightsand duties of individuals arnongst themselves.
Private or civil law is intended to give compensation to
persons injured, to enable property to be recovered fromwrongdoers, and to enforce obligations (contrcrcts andfnrsts). Mainly consists of law on contract, tort and tmst.
Contraet - based on agreement {gouerns the rights andobtigattons that arise bg agreement). The law of contractdetermines when a promise or a set of promises is legallyenforceable. The elements of contracts are as follows:-
o There rnust be an offer.
o Acceptance of that offer.
Both parties making the
capaeity to contract"
There must be no mistake,
influence.
contract must have the
misrepresentation or undue
to enter into legal
o The object must be lau{ul.
o Both parlies must intend
relations (interttion) .
o There must also be consideration-
lntroduction - Revised 7/S/14
tr.g. if a person breached his obiigation under thecontract to supply goods to another person, that personan seek his remedy for that breach in the courts.
Tort - is a civil wrong (based on legai obligation; offencesagainst individuals).
o It is the breach of a general duty which is imposed Lry thelaw (and not agreed between the parties).
o Any person whose legal rights is infringed may sue thewrongdoer. The parties in the disputes can seek theirremedy (for alt breach of wrongdoin$ either in the courtor outside the court by way of negotiation, arbitration,and conciliation-
o There must be an act done intentionally or negligently,and there must be damage caused by such act which isnot remote.
o If h,ring their dispute to court, the court afterboth parties will decide the appropriate remedyto the aggrieved party.
hearing
suitable
Trust - an equitable obligation binding a person (who iscalled a trustee) to dea-l with property over which he hascontrol {which is called trust property) for the benefit ofpersons (who are called beneficiaries or cesfui. que trust) ofwhom he may himself be one and any one of whom rnayenforce the obligation [governs relationships betweentrustees and beneficiaries).
Introduction - Revised 7/5/14
Figure 1-l Classification of I-aw
Cyberspace - Revised 7 /5/14
CI{APTER II
CYBERSPACE
2.1 Introduction
electronic communications happen and digital data is located.
entirely within a computer system or a network of such system.
cyberspace.
without paper, pen or face-to-face communication.
o we are increasingly rely on credit card and direct debitmethods to pay our purchases online-
o seeking or exchalge information with other people thinkingabout visiting destination (e.g, Australia, UK, Bangkok.)
Wondering if the product you want to buy rvorks well orif it's a good price.
You may want to ask people who read a book, what they
thought of it before you take time reading it.
2.2 Disadvantages of Cyberspace
Cyberspace Revised 7 /5/74
The Sources of Malaysian Law - Revised 7/5/14
CIIAPTER III
THE SOURCES OF IVTAI"A-TSIANI I,AUT
3,1 Written Law
3.1.1 The Federal Constitution
. Malaysia is a Federation of thirteen states with a writtenconstitution {applies to all States in the Federation).
. The Federal Constitution is the supreme law of the country.
r The Federal Constitution iaid down the power of Federal
and State Governments and the basic fundamental rights ofthe individual.
. This rights can only be changed by two-thirds majority ofthe total number of members of the legislature.
. For normal laws, can be amended by a slmple maiority.
o The Federai Constitution comprises Articles which provide
the following:-
1. The narne, States and territories of the Federation-
2. Religion of the Federation.
3. Supreme 1aw of the Federation- o
4. Fundamental liberties.
5. Citizenship
6. The Federation - the Yang di-Pertuan Agong, Rulers, the
Executive, Federal Legislature, legislative procedure.
7. The States Rulers and Yang di-Pertuan Negeri,
Legislative Assembly.
8. Relations between the Federation and the States.
9. Financial Prorrisions.
lO.Elections
1l.The Judiciary
The Sources ofMalaysian Law - Revised Z /S/L4
12.Public Services
13. Special powers against subversion, emergency powers
l4.General and miscellaneous, e.g. National Language,
Federal Capital, Commonwealth reciprocit5r, amendmentof Constitutions, etc.
l5-Additional protection fo. states of sabah and sarawak16. Temporary and transitionai provisions.
17.Saving for Rulers' sovereigntlr, etc.
3.L.2 State Constitution
Each state has its owrl constitution regulating thegovernrnent of that State. E.g. Johor Constitution, perak
Constitution, Kedah Constitution etc.
The State Constitution contains provisions which areenumerated in the Eight Schedule to the Federal
Constitution.
Some of these provisions include matters eoncerning theRuler, the Executive Council, the kgislature, the l-egislative
AssernLrly, financial provisions, State employees, andamendment to the Constitution.
If any of the provisions is inconsistent with thern,Parliament may make provision to give effect to them or toremove any inconsistencies, as the case may Lre _ Article 71,Federal Constitution.
The power of a state is provided in the .State List' if theFederal constitution. Example matter which falls underState List is:- Islamic personal and family laws.
Ordinance (extraordinary law) - made by the yang Di_
Perluan Agong during period of Emergency.
o According to Article 150 {2e1 of the Federal
Constitution, 'if the yang di perluan Agong satisfied
that cerlain circumstances exist which render it
The Sources of Malaysian Law - Revised 7 /5/14
necessary for him to take immediate action, he may
promulgate such ordinance as circumstances appear
to him to require'.
o This mean that Ordinance can be made by the yang
di Peruan Agong during a period of emergency.
3.1.3 Legislation
. Irgisla[on are laws enacted by Parliament (federal level)
and State Assemblies (State level).
. Laws that are enacted by Parliament after 1946 but before
Malaysia's Independence in 1957 are called Ordinances.
c Laws that are enacted after 1957 are called Acts-
. l,aws made by the State I-egislative Assemblies (except inSarawak) are called Enactments- Whereas, the laws inSarawak are called Ordinances-
. Parliament and the State Irgislatures are not supreme"
They have to enact laws subject to the provisions set out inthe Federal and Sate Constitutions.
. The subject-matter for legislation is divided between the
Federal and State Goverlments.
. E.g. of legislation Statutes or Acts of Parliament,
Ordinance and Enactments-
10
Table 3.1 trgislation
1) Enacts law at Federal level Enacts law at State level
2) Within limits prescribed byFederal Constitutiorr.
Within limits prescribed by StateConstitution.
3) Laws enacted before 3l/B/57 arecalled ordinance.
[,aws enacted by State Assembliesare called Enactment exceptSarawak laws are called Ordinance-
4) L,aws enacted after 3I/B/57 arecalled Acts.
State Irgislative Assembly can enactlaw inn matters listed in List II of thenine schedule.
5) Parliament can enact laws inmatters listed in list I of the nineschedule.
The Sources of Malaysian Law- Revised 7/5/14
3.1.4 Subsidiary Legislation
" The Interpretation Act 1967 defines Subsidiary Irgislationas "any proclamation, rule, regulation, order, notification,by-law or other instrument made under any Ordinance,
Enactment or other law{ul authoritlr and having legislative
effect".
. Subsidiary lcgislation are laws made by person or bodies
under powers conferred on them by Acts of parliament orState AssemLrlies.
kgislature iays down the basic and main laws, leaving the
details to persons or bodies to whom they delegate theirlegislative powers. Such person or bodies include the yalgdi-Pertuan Agong, Minister and local authorities.
E.g. of Subsidiary kgislation - Rules and Regulations, By,
Iaws.
1l
The Sources of Malaysian Law - Revised 7 /5 / 14
3.2 Unwritten Law
unwritten iaw is a porLion of Malaysian law which is not written, i.e
law which is not enacted by Parliament or the state Assemblies. It isthe law which is not found in the Federal and state constitutions.
3.2.1 English Law
trnglish common law and mles of equity form part of the
law of Malaysia-
Section 3(1){a)of the Civil Law Act 1956 which is applicable
to Peninsular Malaysia mentions the application of *the
cotrurlon laus oJ England and the rttles of equitg" as
administered in England on 7 April 1956.
Whereas in Section 3(1)(b) and (c) of the sarne act which isapplicable to Sabah and Sarawak allows the application of"the common law of Engtand and the rules of equity
together with statutes of general application, as
administered or in force in England on 1 December lg5tand 12 December 1949 respectively.
The application of the law of England throughout Malaysia
is subject to two {2) Limitations:-
o It is applied only in the absence of local statutes on
the particular subjects. Lqcal law takes precedence
over English law as the iatter is meant to fiil the gaps
(lacuna) in the legal system in Malaysia.
o Only the parl that is suited to local circumstances
will be applied. The provision to section 3(i) of the
Civil Law Act 1956is the authority for this, It states
that 'the said common law, rules of equity alclstatutes of general application shali be appiied so faroniy as the circumstances of the States of Malaysia
and their respective inhabitants permit and subject
to such qualifications as local circumstalces render
12
The Sources ofMalaysian Law - Revised 7 /5/14
necessary"- This provision is necessary, as thepopulation in Malaysia comprises diverse races
practicing a variety of customs and religions, most ofwhich are totally different from those of the English
societ5r.
9.2.2 Judicial Deeisions ,l Judicial Preeedent
. Malaysian law can also be found in the judicial decisions ofthe High Courts, Supreme Court and then the Federai
Court and the advice of the Judicial Committee of the Privy
Council.
. These courts make their decisions systematically byfollowing the 'doctrine of binding judicial precedent'.
r Judicial Precedent - When deciding cases, judge followcertain accepted principles commonly known as precedents.
Precedents are decisions made by judges previously insimilar situation.
. If the judge applies an existing rule of law without extendingit, his decision is called a declaratory precedent. However,
if the case before a judge is without precedent, his decisionwhich is made based on justice, equity and good
conscience, r rill be known as original. In this manner,judges are constantly contributing to the development ofunwritten law in Malaysia.
. A decision of Superior Courts {e.g. the Supreme Court)
binds the lower courts {e.g. the High CourLs, Sessions
Courts, and Magistrates' Courts).
Therefore, binding precedents would depend on a court'spositlon in the hierarch5r of the courts.
Persuasive precedents are those, which are not tlindingauthorities, unlike binding precedents, which are bindinguntil they are reversed on appeal or overn_rled.
13
The Sources ofMalaysian Law - Revised 7 /5/L4
. The advantage ofjudicial precedent are as follows:
o It leads to an element of certainty in the law.
o The law is able to grow as the needs of society alter.
o The law is flexible in that new rules arise out
concrete facts of situations.
. The disadvantage ofjudicial precedent are as follows:
o Due to the hierarchy of binding precedents being
established, the law becomes rigid.
To prevent rigidity, courts tend
distinguish cases on the facts.
The development of the law through
may be said to be slow and irregular.
to be keen to
new precedents
3.2.3 Custorns
Customs of the local inhabitants in Malaysia are also asource of law.
Customs relating to family law, i.e. marriage, divorce and
inheritance, are given legal force by the courts in Malaysia.
'Adat' applies to Malays; prior to the enforcement of the t aw
Reform (Marriage and Divolce) Act 1976, Hindu and
Chinese customary law applied io Hindus and Chinese
respectively. In Sabah and Sarawak, na.tive customary laws
apply in land dealings over native customary lands and
family matters where natives subject themselves to native
customary laws-
1.4
The Sources of Malaysian Law - Revised 7 /5 /14
Note : Laws made by Federai Parliament are known as Acts.
l"aws made by States Legislative Assembrlies are known asEnactrnent.
Laws made by State Legislative Assemblies of Sarawak, are knownasOrdinance.
Table 3.2 Types of Law
This is most important source inMalaysia.
Malaysian written law includes:-
1) Federal constitution, the supremelaw of the land.
2) State constitutions, the law of our13 states.
3) l,eglslation enacted by theParliament.
4) Irgislation enacted by the StateAssemblies.
5) Subsidiary legislation made bypersons or bodies under powerconferred on them by Acts ofParliament.
6) Subsidiary legislationdelegated legislation made bypersons or bodies under powerconferred on them by trnactmentsof State Assemblies.
7) Ordinance, made by the Yang Di-Pertuan Agong during period ofEmergency.
Unwritten law includes: -
1) Principles of English law.
2) Judicial Precedents.
3) Customs of local inhabitants-
15
The Sources of Malaysian Law - Revised 7 /SlI4
Written LBw
IIit
Figure 3.1 Sources of Malaysian Law
Sources,-of'Malayq!.Law
Copyright Revised 7 /O5/ 14
CIIAPTER TV
COPYRIGHT
4.1 Introduction. Copyri€ht is defined as a right to authorize the use of one's work
in different ways.
. CopFight is the exclusive right given to the owner for a specific
period, either the life of the author plus fifty (50) years after the
publication or the making of the work, depending on the types ofthe copyright works.
. The work is protected automatically upon fulfillment ofconditions provided under the Copyright Act 1987.
. It is emphasis on the right to prevent others from unfairly takingadvantage ownership of the original owner of the copyright, who
in most cases is the author, composer, artist ald sculptor where
the work originated.
. This works shall be protected irrespective of their quality andpurpose for which they were created. However, the copyrightprotection shall only exlend to expression and not ideas,
procedures, methods of operation or mathematical concepts as
such.
4.2 Copyrightlnfringernent
. Copyright is infringed by any person who does, or causes a_ny
other person to do, without the license of the owrler of the
copyright, an act the doing of which controlled by coplright underthis Act.
. Any reproduction of ar-ry work eiigible for coplright under the
Malaysian Copyright Act lg87, the making of which constitute ar:
infringement of the Copyright in the work or, in the case of any
1'7
Copyright - Revised 7 /05/ t4
article imported into Malaysia without consent o[ the owrrer of theCopyright.
4.3 Works Eligible for Protection
. Literary works
. Artistic works
Sound recordings
Derivative works
. Musical works
o Films
o Broadcasts
4.4 Fair Use DoctrineExclusive Right
(Limitation Copyright Ow:ner's
' It is a statutory limitation on the exclusive rights of a copyrightowrrer.
' certain fair use of copyright are authorized by the law and do notrequire the consent of the copyright owner.
' E.g. limited copyrighted material maylre used as handout materialin the college classroom over the obrjection of the copfight o\,l,ner.
4.4.1 Factors in Detersrining Fair Use:-
u rhe purpose and character of the use, including whether itsuse is of a commercial or educational nature: whether its use
is of a commercial or educational nature: whether the purposeof the use was commercial or non-profit educational.
1B
Copyright - Revised 7/Ob/t4
i. U.S Supreme Court state that commercial use ofcopyright materials raises a presumption of unfair use
that must be rebutted by the defendant.
ii. Non-profit educational institution that distributecopyright materials are inclined to have the benefit offair use-
2) The nature of copyright material: court will examine thenature of the work to determine if it is merely informational orfactual.
i. Newsworthy events are mere information are generally
subject to fair use.
3) The amount and substantiaiity of the copyright material inrelation to the copyright work as a whole: The criterion isquantifiable and relates to the number pages used.
i. Distribution of a page or two may be appropriate, butsmall portion may implicate infringement liatrility.
4) The impact of the use on the potential market value of thecopyright material: There will not be fair use if the potentialmarket of the copyright material is lost.
Figure 4.1 Burden of proof in a copyrigr,t@
COPYzuGHT INFRINGEMENT I.AWSAIT
PI.AINTIFF V DEFENDANT
A- ovrner of the registered Doctrine of Fair Use appiiescopyright. Or -
Public DomainB. Violation of an exclusive
statutory right undercopyright law.
C. Theory of liaLrility.1i Direct Infringement2) Contritrutory
Infringement3) Vicarious Infringement.
19
Privacy - Revised 7 /O5/ 14
CIIAPTER V
PRTVACY
5.1 Introduction
'/ Privacy has been defined as *the claim of inclividuals groups orinstitutions to determine for themselves when, how and to whatexlent information about them is comrnunicated to others. Thesimple definition is -the right to be let alone..
'/ Generally, privacy can be defined as the quality or condition ofbeing secluded from the presence or rriew of others; the state ofbeing concealed; secrecy.
'/ However, it is undesirable to adopt this definition because notevery secret information is subjected to privacy protection and noteverything that is disclosed loses its privacy characteristic.
'/ The term 'privacy' refers to the privilege owned by an individualfrom any interference by other(s) with any of his/her privateactivities so long as these activities are not illegal and do not harmothers.
'/ It is claimed that privacy does not need specific legai recognitionbecause when there is illegal intrusion to the right to privacy, theplaintiff can claim for remed3r under the existing legal doctrinesuch as defamation; or breach of inteliectual properLy rights; orbreach of confidential information; or evert of contract or tr-ust.
/ Example of Privacy Cases in Daiiy Transaction:_
= computers are able to collect a rot more information inclrcumstances where few records were previouslygathered. consider the use of deLrit and creclit cards as
opposed to the cash pal.rnent. A purchaser using a creditcard in retail store wiil record ihe amount of transaction,the time, and the date, and the identity and location of thepurchaser. Cash payments nornally leave no such trail.
20
= Many automated telrer machines operate in this way as
part of the system of a financial institution. Being onlinepermits transactions to be processed immediately, theimpact on the parties to the transaction is instantaneous.
This will allow the operator to determine the exact location
of those concerned. Moreover, the sharing of a networkmay allow the parties to it to gain access to informationnot previously available to them.
5.2 workplace Privacy - Elements for company polic5rfor computerUsage
,1 Indicates the reasons for the policies.
,/ Indicates that employees should expect no privacy in company-
owned property.
./ Apply the policy to all employees including the CEO.
'/ Inform employees that computers issued to them are to be used
for business purpose only.
Indicate the nature and extent of computer monitoring, that it canbe done at any time without notice, and describe the use of anyrelated software or other method for that purpose.
Inform employees that all communications, data and documentsstored in computers are confidential unless made public by thecompany- If relevant, inform employees on the methods to be usedin handling such information.
Zero tolerance will apply to offensive, harassing or discriminatingcommunications or emails and visits to inappropriate websites.
Prohibit employee encryption
permission.
of email without company
Establish requirements for employee personal websites {indicatelhat the company name shouid not be posted on the site).
./ Indicale lhe penalties for violations of the policy.
7.7
Privacy - Revised Z /OS/ 14
'/ Indicate that password protection does not guarantee- freedomfrom employer access.
5.3 Definition of Data
' This term is only used to refer to the transfer of personalinformation; that is information relating to individuals rather thaninformation relating to companies or governments.
' For example, information relating to travel, or credit and health, aswell as information about criminal convictions.
Personal data has been defined in the convention and otrcDguidelines as:
'ang i4formation relating to an idenfified" or identifiable indiuidtnL,
' The above definition is exlremely broad; it can include a number o1
data of various kinds (social security, bank accounts, etc.) and allkinds of commercial activity.
5.4 Transborder Data Ftow (TBDF)
* TBDF is defined as all kinds of electronic transmission of personalinformation across political ald boundaries for processing orstoring in computer files.
It concems the transfer of personai informationgeographic bo undaries.
across sovereign
F"our (4) basic Principles;-
ii The vital importance of the efficient exchange of informationin the development and growth of modern internationaltrade and production.
2) Tbe right of business to communicate freely withlnoutside its corporate structure.
22
and
Privacy - Revised 7/O5/14
3) The right of business to access and utilize national andinternational communication facilities on a fair, competitiveand non-discriminatory basis.
4) The necessity of recognizing the world-wide interclependence
of modern business communication.
LJ
Trademark - Revised 7/A5/M
CIIAPTER \rI
TRADEIT{ARI(
6.1 Introduction
of one trader from those of another. A mark includes words, logos,
pictures, names, letters, nurnbers or a combination of these.
recognizing the product of a particular trader.
TM. while the symbol @ denotes that the trade mark is registeredand protected under trade mark law, the sign TM merely gives anindication that the trade mark is used by the company.
6.2 The knportant of Trademark Registration
'i' A registered proprietor has an exclusive right to the use of thetrademark.
* Right to initiate civil or criminal action against any infringer forunauthorized use.
* Right to assign or allow a registered user to use the trademark.
6.3 Types of Tradernark in Malaysia
n Trademark
A mark used to distinguished cerlain goods or seryices as capable
of dlstinguishing of other traders.
iil CertiJication Mark
24
A mark used to distinguish
set of standards in respect
other characteristics given to
Trademark - Revised 7/OS/t4
goods or services that comply with aof origin, material, quality, safety or
a competent body/authority.
As a matter of fact, certification marks are filed for byorganizations, associations, guilds and other institutions who have
definite rules and standards governing the use of such marks.
Certification relates to source, origin, material used, mode of
manufacture, quality arrd gimilar traits-
Certification trademarks must
distinguishing the goods or services
goods or services- An application for
set of the n-rles governing use of the
basically be capable of
so certified from non-certified
a certification mark requires a
mark.
certification marks are given for compliance with definedstandards, but are not confined to any membership. certificationmarks may be used by anybody who complies with the standards
defined by the owrler of the certification mark.
An important requirement for certification marks is that the entitywhich applies for registration is considered "competent to certify"the products concerned.
Example: The SIRIM symbol is the registered trade {certification}mark of SIRIM Bhd. The SIRIM symbol is a quality assurancesymbol denoting that the products on which ii is applied, complieswith applicable quality standard.
Courtesy: SIRIM Bhd
Trademark - Reviscd 7 /05/ 14
tii) Well-knoun Mlrk
A mark that is considered to be well-known in the market and as a
result benefit from stronger protection.
The Amendment Act, in line with the Paris Convention, provides
for protection of marks which are well-known in Malaysia.
However in order to determine whether a mark is well-known in
Malaysia the international use of and reputation in the mark can
Lre taken into consideration. Regulation 138 of the Trade MarkRegulations 1997 specifically provides the following criteria to Lre
taken into account in determining whether a mark is a well-known
mark:
a) The degree of knowledge or recognition of the mark in the
relevant sector of the public;
b) The duration, extent and geographical area of any use of the
mark;
the duration, extent and geographical area
the mark, including advertising or
presentation, at fairs or exhibitions. of the
which the mark applies;
The duration and geographical area of any
applications for reglstration, of the mark toreflect use or recognition of the mark;
The record of successfui enlorcement of rights in the mark, inparticular, the extent tc w,hich the mark was recognized as
well-known by competent authorities;
The value associated with the mark.
This goes beyond the traditional protection ol the 1ocal goodwill ina trademark which requires proof of use ol the rnark and businesspresence in Malaysia to protection of marks whictr by reason of
@ric/egggr
c)
di
el
of any promotion of
publicity and the
goods or services to
reglstratiorfs, or anv
the extent that thev
ZO
Trademark - Revised 7/O5/14
foreign use and reputation have become well-known in Malaysia.
Section 708 (3) of the Trade Marks Act 1976 inserted try the
Amendment Act expressly provides that a well-known mark is a
mark which is well-known in Malaysia as being the mark of aperson whether or not that person carries on business, or has any
goodwill, in Malaysia.
"Well-known marks" are marks that are considered to be well-
known by the competent authority of the country where protection
for the mark is sought. Well-known marks generally benefit from
stronger protection. For example, well-known marks may be
protected even if they are not registered (or have.not even been
used) in Malaysia. In addition, while marks are generally protected
against confusingly similar marks only if used for identical orsimilar products, well-known marks are protected against
confusingly similar marks for even dissimilar products, if certainconditions are met. The main purpose of this stronger protection is
to prevent companies from free-riding on the reputation of a well-known mark and/or causing damage to its reputation or goodwill.
Exarnple: l,et us assume that WONDERCOI-A is the famous trademar:k of a soft drink belonging to Wondercola Inc. If the trademarkWONDERCOLA is well-known in Malaysia for soft drinks, it wouldthen benefit from automatic protection in Malaysia, even withoutregistration or use. The protection would also be available forunrelated goods and services. That is to say that if anothercompany decides to market other products, ranging from T-shirtsto sunglasses, using the WONDtrRCOI-A. mark, it witl have to seek
the authorization of Wondercoia Inc- or risk being sued forviolation infringement of trade mark rights.
iu) Seruice Mark
A mark used to distinguish certain services as those providecl byother traders- -
1t
A service mark, is a logo used by service industry (e.g
entertainment, transportation, travel agents, etc.)
u) Dqfensioe Trademark
A well known registered trademark consist of invented
word/words. The registration enjoys protection for non-use on the
goods or services.
PETRONAS ffd,m\dM&w;s
Where a trade mark has become well-knowrl as regards to any
goods or services in respect of which it is registered, the proprietor
of the mark could register the mark as a defensive mark in respect
of other goods and services. A defensive mark must be an invented
word{s) mark and its registration could not be removed from the
Register on grounds of non-use. By registering a mark as adefensive mark, the proprietor can, under certain conditions, take
infringement action instead of the more uncerlain costly and
lengthy action for passing-off.
The options of defensive trade mark protection;
.A well knorur mark may be registered as a defensive mark in allclasses of goods ,/ senrices in addition to the classes of goods or
senices in which the well known mark is actually in use"
. To register for a defensive mark in respect of any goods and
services, the registered owner must have an existing registration of
the mark.
.A defensive mark must have an established reputation for certain
goods and services for which the mark is already registered
wherein the-registered owner of the mark must show that the
public would incorrectly construe that the mark used in relation to
other goods and services, indicates a trade connection with the
LO
Trademark - Revised 7/O5/14
registered owner.
' The registration of a defensive mark is immune to cancellationaction for non-use of the mark and will not be required to showproof of use for the purpose of renewing the defensive registration,so long as the main registration is in force.
' Infringement action can be taken against unlawful use of the wellknown mark even though the infringing mark is used in relation todissimilar goods / services.
6,4 Dornain Name
* an important problem concerrrs the conflict between trademarksand domain narnes. Domain names are Internet addresses, andare commonly used to flnd websites. For example, the domainname 'wipo.int' is used to locate the wlpo website at www.wipo.int- over time, domain names have come to constitute businessidentifiers thus often
't It is important to chose a domain name which is not thetrademark of another company, particularly a well-knowntrademark. This is because many national laws, or courts, treatregistration of the trademark of another company or person as adomain ilarne as trademark infringement, popularly known ascybersquatting. If this happens, then, a person business may notonly have to transfer or cancel the domain name, Lrut it may alsohave to pay damages 0r a heavy fine.
* In orcier to find out whether a particular trademark is aireadvprotected, one carr directly contact the national or regionaltrademark offices, many of rvhich operate Internet searchaLrle
trademark datatlases. A list of such databases is available onWIPO's website ^L.dL. www. wipo . int / amc I en / trademark/index.htmll
{ On the other hand, ifa domain name or is
the trademark of a company is being used
being cybersquatted by another individual
AS
OI
aoLJ
Trademark - Revised 7 /O5/ 14
company then action can be taken to stop suchmisuse/infringement of the rights of a company. In such a case,
one option would be to use WpO's very popular online
administrative procedure for domain name dispute resolution at:
http://www.wipo. int/arnc/enldomains/. This WIPO weLrsite
inciudes a model complaint as well as a legal index to the
thousands of WIPO domain name cases that have already been
decided-
t O.garri"ations are allowed to apply for ".com.my', ".net.my" and'.org.my" domains. Malaysian individuals aged 18 and above can
own personal domains (".name.my'J- Second level domains {".my',)
can be registered by all Malaysian entities whether organisations
or individuals as they are free from categorisation. only certified
agencies under the education, military and government sectors
may apply for ".edu.my", *mil"my'' and ".gov.my" domains
respectively.
'.# a domain name is registered through the Malaysian Network
Information centre Berhad tlvtyluc), which is the sole
administrator and registrar for ".my'' domains. Applications for*.edu.my", -"gov.my" and'-mil.my" have to be submitted online viathe MYNIC domain Registry's online system. Applications for".com.my", ".net.my" and ".org.my" and ".name.my" domain narnes
are done through MIINIC's officially appointed resellers.
supporting documents must be submitted within 14 days fromregistration. Successful registrants will then be notified andinvoiced.
6.5 Passing-Off
. In principle, 'passing off is a trader selling his goods or services as
that of another.
. It is a misrepresentation as to the origin of goods or serrrices.
It is a recognised cause of action in common law.
30
Trademark - Revised 7/O5/14
The primary object of the law of passing off is to protect the
goodwill that a trader has established with respect to his goods or
serrrices.
The secondary oq-ect of the law of passing off is that public should
not be mislead or deceived to buy one trader-s goods thinking they
are another trader's goods {note: however the deceived or misled
public cannot take a passing off action, but only the aggrieved
trader can take the action).
1a.)l
Defamation - Revised 7/05/14
CIIAPTER \rII
DEFAMATION
7.1 Introduction
= Defamation occurs when a person expresses words that may lower
another person's reputation in the eyes of the public. There are
two t5rpes of defamation; libel and slander.
= The oral form is called slander; spoken or made by bodymovements. online defamation - such as through an transcribedvideo, podcast or audio file.
= The written or published form is libel; visible to the eye, like in abook, e-mail or picture. Most online defamation occurs throughlibel by posting a web page, comment, bulletin board post, review,
rating or blog post.
= A plaintiff alleging slander must prove special damage, e.g.
financial loss.
=+ Both libel and slander are serious offences that can cause
irreparable damage to a person's reputation. However, libel andslander are not easy to prove because there may not be anyphysical evidence to prove the harm.
7.2 Elernents Of Proof Required for Libel
7 Afake o;nd. defarnatory statement. Usuallg af foct and. notopinion, must be made ahout antother,s reputotion orbusiness.
r Direct evidence, irrnuendo, insinuation, or reference mayestablish this.
. The statement made is understooci by others 'of orconcerning' the plaintiff.
aaJL
. If the individual who
deceased at the time
for defamation exists.
Defamation - Reyised 7/O5/14
the subject of the detamation is
is published, no cause of action
iS
it
2. Art unpriuileged publication is made or communicated. to athird. partg (htblication mu"st be mqde to the public).
r There is no liability if the defendant did not intend thepublication to be viewed by anyone other than the
plaintiff.
. E.g., online communications concerning e-mail are
accessiLrle ald capable of interception Lry literallymillions of others. Therefore, it is unlikely thatdefendant would be able to argue he did not intendothers to view defamatory statements published online.
Depending on state lo;w or whether tFre plaintilf i.s
considered. a public affieial or figure, the plaintiff mogIl,,rrae to establislr- solr.ne degree offautt or negligence on thepart oJ the deJendant (the octs be done uitlr. Jautt or
. A plaintiff who is a public figure will have to prove the
defamatory remarks were made with actual malice.
. if the plaintiff is a private individual, the burden of proofis less demanding, depending on the state's requirement
for "fault" regarding this element.
The defamatory statements must result in octuo,l orpresumed" d.amages.
. In libel, damages are presumed to exist.
" The permanent nature of a libelous statement, theability, especially via the Internet, to distribute it widely,
store it indefinitely, and the fact that, in general, writtenwords require more premeditation than those spoken,
3.
4.
2'JJ
Defarnation - Revised 7/ASlru
have led courts to allow recovery for libel without proofof actual or special damages.
7.3 'Slander Per Se'
= *Per Se" (bY itseif). It refers to slander in and of itself without proofof special damages, such as the sltuation in which a person is
" falsely accused of having committed a crime.
+ In 'slander per se", the plaintiff does not need to proof specialdamages.
= Four {4) categories of 'slander per Se" are as follows:-
i) Accusing another (Plaintiffl of comrnitting a seriouscrirne.
.+ for example, if a party states that you have been
convicted of a crime, they may be held liable fordefamation per se.
ii) Accusing another {Plaintiffl of having a loathsome orcomrrunlc able disease.
= A loathsome disease typically is something like an STD,leprosy, or something along the lines of contagious, orvery detrimental to the rest of society. This category goes
back to olden days when, in iact, people may have hadsyphilis or spread other types of diseases.
iii) Injuring another (plaintiff)in their business orprofession {attacks on the plaintiffs eompetence toperform adequately in his profession).
= If someone tries to injure you in your profession, say, forexample, they accuse you of medicai malpractice when,in fact, you are not liable for medical malpractice, then
34
Defamation - Revised 7/O5/14
those types of statements may rise to the level ofdefamation per se.
iv) In sorle states, accusing a woman of being unchaste(suggesting that a woman is morally impure).
+ In common law, statements about the sexual unchastity
of a woman were seen to be so harmful that they would
" .onstitute defamation per se.
7.4 Immunity For Service Providers (Section 23,A of theCommunication Decency Act (CDA) of 199G)
= CDA Act (1996) is a internet legislation in the United States (US),
codified at 47 U.S.C Section 23O.
= It provide immunity from liability for providers and users of an"interactive computer service" who publish information provided
by others.
= Section 23O provide that *No provlder or user of an interactive
computer service shall be treated as the publisher or speaker ofany information provided by another information content
provider".
= A defendant must satis$r each of the three points below to gain
the benefit of the immunitw:,
iJ The defendant must be a "provider or user" of an"interactive computer service".
ii) The caLlse of action asserted by the plaintiff must "treat"
the defendant "as the publisher or speaker" of the
harrnful information at issue.
iiiJ The information must be "provided by another
information content provider": the defendant must not
be the "information content provider" of the harmful
information at issue.
l-aw Cases - 17 /45/ A
CYBERT,A\ry
I,AW CASES
1.O COPYRIGHTINFRINGEMENT
1.1' Leslie A. Kelly v Arriba Soft Corporation (2OO2) - (FAIR
USE)
Ieslie Kelly, owrler of copyrighted images displayed on Internet
web sites sued the operator of visual search engine (Arriba Soft Corp),
which displayed search results as "thumbnail" pictures, for copyright
infringement.
An owner of a copyright (Kelly) has the exclusive right to
reproduce, distribute, and publicly display copies of the work.To
establish a claim of copyright infringement by reproduction, the
plaintiff (Kelly) must show ownership of the copyright and copying by
ttre defendant [Arriba).
Copyright owrler {KelM, whose copyrighted images were
displayed on Interrret web sites, established prima facie case ofcopyright infringement based on copying of those images by operatorof visual search engine (Arriba) that displayed search results as
"thumbnail" pictures.
Fair use factor, that looked at purpose and character of use ofcopyrighted work, weighed in favor of operator of visual search engine
{Arriba}, which displayed search results as "thumbnail" pictures, incopyright infringement action brought try owner of copyrighted images
that were displayed on Internet web sites and via operator s search
engine, even though search engine was operated for commercial'purposes, because use was transformative, in that it served entirely
different function than owner's original images, use did not supplantneed for originals, and use benefitted public by enhancing Internet
i
36
l-arv Cases - 17 /O5/ 14
information gathering techniques.
The creation and use of the thumbnails in the search engine is
a fair use. However, the court should not have decided whether the
display of the larger image is a violation of plaintifls exclusive right to
publicly display his works. Thus, we remand for further proceedings
consistent with this opinion.
Arriba's use of Kelly's images also would not harm Kelly's
ability to sell or license his full-sized images. Arriba does not sell or
license its thumbnails to other parties. Anyone who downloaded the
thumLrnails would not be a successful selling full-sized image
enlarged from the thumbnails because of the low resolution of the
thumbnails. There would be no way to view, create, or sell a clear,
full-sized image without going to Kelly's web sites. Therefore, Arriba's
creation and use of the thumbnails does not harm the market for or
value of Kelly's images.
L.2 Field v Google Inc (2OOG) - (FAIR USE)
This case was a test of Google, Inc.'s practice of "caching" web-
based material on their servers, by storing the coded information,
indexing it, and then making it available to the public. Plaintiff Field
discovered several of his copyrighted works on Google's servers and
brought suit for copyright infringement. Google's claim of fair use (it
offered severai other defenses as well) was upheld primarily based on
the first and fourth fair use factors, and especially the first.
Among other things, the coud lound that because Gccgle's
cached links are not direct substitutes for the original-they are
instead useful only when the original is unavailable-and because
they provide a significant, vaiuable serwice to the pubiic without
causing damage to lhe plaintiffs market, that Google's practice
constitutes a fair use of the material.
37
[-aw Cases 17 /05/74
1.3 Righthaven LLC V Jarna (2Or1) - (FAIR USE)
A nonprofitorganization posted a newspaper article about
police discrimination on its website. The newspaper assigned its right
in the article to a third party, Righthaven had acquired the copyright
but was not in the newspaper business (lt appeared to be in the
'litigation business").
For that reason, the court reasoned that the nonprofit's use
was transformative because its purpose was to educate the public
about immigration issues, whereas Righthaven had no such purpose
for the article (because it was not in the news business), and could
show no harm from the defendalt's dissemination of the article.
2.4 PRTVACY
2.1 Griswold v Connecticut (1965)
In Grisurold rs. Connecticut (1965), the U.S. Supreme Court
declared unconstitutional a state of law prohibiting the use of Ltidh
control devices and the giving of advice concerning their use.
This case held an imporlant element of this right was to
estabiish the existence of a "reasonable expectation of privacy".
Minimum requirements
expectation of prlvacy":
for establishing "reasonable
A person exhibits an actual expectation of privacy. Consider
what you expect when entering an area or location, e.g. your
bedroom, which you desire to be "off limits" to others. Or
consider what ievel of privacy an employee should anticipate
with regard to his office, desk, file cabinet or floppy disk.
Society recognizes the expectation as reasonable. In addition to
your privacy expectation, what do others believe to be your
expectation of privacy when you close the door to your bedroom
or your file or your office, enter a public phone booth, send an
e-mail, or surf a Web site?
i.
2.
JO
law Cases - 17 /05/74
2.2 Olmstead v United States (f 928)
This is a t92B U.S Supreme Court case in which the court
examined the question of whether use of wiretapped private telephone
conversations, obtained by federal agents without judicial approval,
as evidence constituted a violation of the defendant's rights provided
by the Fourth and Fifth Amendments.
2.3 California v Greenwood (1988)
It was a case in which the Supreme Court of the United States
held that the Fourth Amendment does not prohibit the warrantless
search and seizure of garbage left for collection outside the curtilage
of a home.
2.4 lKatzv United States (1967)
It was a U.S Supreme CourL decision that extended the Fourth
Amendment protection from Lrnreasonable searches and seizures to
protect individuals in a teiephone booth from wiretaps by authorities
without a warrant.
2.5 I{yllo v United States (2OO1)
It was held that the use of a therrnal imaging device from apublic vantage point to monitor the radiation of heat from a persons
aparLment was a "search" within the meaning of the Fourlh
Amendment, and thus required a warrant. Because the poiice in thiscase did not have a warrant, the Court reversed Kyllo's conviction for
growing marijuana.
3.O TRADEMARI(INTRINGEMENT
3.1 Mcdonald vs MeCurry [2OO9]
The plaintiff was a fast food franchisor with outlets all over the
globe. The defendant in turn, ran a fast food outlet which offered
39
r Cases - 17/O5/14
Indian and other local Malaysian cuisine. It did not serve any of thekind of food available at the plaintiffs ouilets.
The plaintiff instituted an action against the defendant forpassing off the plaintiffs business as it own. In its claim the plaintiffpleaded that the defendant had copied and adopted the plaintiflsdistinctive 'Mc' identifier for its own food and beverage ouilet.
The trial judge found for the plaintiff and held that customerfamiliar with the McDonald's trademark would logically assume thatthe 'Mc' in the defendant's McCurr5, restaurant was 'associated insome way to the plaintiff or was an extension of the plaintiffs currentrange of products and services'.
In arriving to this conclusion the trial judge appeared to have
been influence by the decision in the Mclndian case that irnrolved theregistration of the Mclndian mark and which decided that Mclndiancould be confusingly similar to the McDonald's family of marks allemploying the prefix'Mc'.
Dissatisfied with the decision of the High court, the defendantproceeded with this appeal. The main issue to be considered in thisappeal was whether the trial judge had judicially appreciated theevidence when she held that the use of the word .McCur4r' by thedefendant amounted to a passing off by it of the plaintiffs trade nameto which goodwill is attached.
Held, allowing the appeal with costs:
il Defendant's presentation of its business was in a style ald get-upwhich was distinctively different from that of the plaintiff.
. McCurrlr Restaurant signboard carries the words"Restaurant McCurryr", \ rith the lettering in wfiite andgrey on a r.ed background with a picture of a smilingchicken giving a doubie thumbs-up.
4A
l-aw Cases - 17 /O5/ t4
ii) The items of food available at the plaintiffs ouflet all carry. theprefX 'Mc' but none of the food items served in the defendant,s
restaurant carr5r the prefix'Mc'.
. The prefix of 'Mc' is used
words to name the various
McDonald's Restaurants,
'McNuggets".
The narne 'McCurry' was created based on the
abbreviation of 'Malaysia Chicken' and 'Curry'-
iii) The type of food available in the plaintiffs ouilet and the
defendant's restaurant were very different.
. The food items McCurry offered to its customers were
wholly different from those offered by McDonald's.
McCurry sells typical Malaysian and Indian foods suchas fish head curry,, biryani rice, roti canai, nasi lemakanrl teh tarik while McDonald's sells burgers, fries,
shakes, pies and etc.
. As in the case of Mclndian, not only they sold Indianfood Lrut also Southern Fried Chicken, Cheeseburgers,
French Fries and Shakes which are the verv items thatMcDonalds also sell.
iv) The $pe of customers who patronize the plaintiffs outlet were verydifferent from those who eat in the defendant's outlet.
. Diflerent target market
3.2 Interpace Corp v Lapp, Inc
This case presents the difficult issue of trademark protectionwhere trvo parties are using the same trademark on non-competingproducts. The l,app Division of plaintifr Interpace Corporation ["Lapp-Interpace") manufactures and sells ceramic insulators under the"Lapp" trademark. The l,app narne was first appiied to insulators in
in conjunction with otherfoods available at all of the
such as "McChicken".
41
t
,i'
Law Cases - 17 / 05 / 14
1916' when John S. i-pp formed the Lapp Insulation company. In1953 the Lapp trademark, as applied to ceramic insulators, was
entered in the principal trademark register. In 1969 Interpacecorporation acquired the tapp Insulation company, along with theLapp trademark and accompanying goodwill.
Defendant, l,app, Inc., is the United States marketing arm ofl"app, Stuttgart, Gmbh and U.I. Lapp, A.G. The parent companieswere formed in 1957 by oskar Lapp to rnanufacture and sell electricalwire and cable- I-app, Inc- was formed in 1976 as a New Jerseycorporation with its headquarters in Fairfield, New Jersey. since lg77it has distributed wire, cable ald related electrical hardware in theunited states under the "Lapp" and "Lapp cable" trademarks. It hasnever applied for federal registration of this mark.
I-app-Interpace brought suit to enjoin Iapp, Inc. from using the"I-app" narne on its products, alleging direct infringement of a
registered mark, 15 u.s.c. sec. t1l4 {1976}, false designation oforigin under section 43(a) of the I-anham Act, rb u.s.c. sec. t l2b{a)(1976), and infringement of New Jersey comrnon law trademarkrights. pace.
The law of trademark protects trademark owrters tn theexclusive use of their marks when use by another would be likely tocause confusion. Where the trademark owner and the alleged
infringer deal in competing goods or services, the court need rarelyIook beyond the mark itself. in those cases the court will generallyexamine the registered mark, determine whether it is inherenilydistinctive or has acquired sufficient secondary meaning to make itdistinctive, and compare it against the challenged mark. To determinelikelihood of confusion where the plaintiff and defendant deal in non-competing lines of goods or serrrices, the court must look beyond thetrademark to the nature of the products themselves, and to thecontext in which they are marketed and sold.
;
42
5
I,awCases- IZ/OS/14
3.3 Checkpoint Systerrs, Inc v Check point SoftwareTechnologies, Ine
Checkpoint System, Ine (plaintiffl - Manufacturing anddistributing commercial electronic securit5r control since lg67.Itsdevices are designed to track the physical location of goods and are
sold to retailers to prevent merchandise theft. They used the-CHECKPOINT' mark.
Defendant Check Point Software Technologies, Inc, vrritescomputer programs that protect and manage access toinformation. Principal product is *firewall " technologr.
_:.
checkpoint systeri (Plaintiff) attempted to register the Internetdomain nuune http:./ /tutuu.checlcpoint.com but discovered that it wasregistered under check Point software (Defendant).checkpoint
Systems {Plaintiff} filed suit alleging trademark infringement andunfair competition under the tanham Act.checkpoint systems(Ptaintif8 contends the District court improperly evaluated the Lappfactors in its likelihood of confusion analysis.
3.4 compagnie Generale Des Eaux v compagnie Generale Des
Eaux Sdn Bhd (1992) - (passing-off)
Plaintiff renowned French company in water technology
- using name for 138 years when defendant company incorporated inMalaysia in 199I.
Injunction sought to restrain defendant from using orcaryring on business in Malaysia under same name.
Defendant claimed praintiff had no local goodwill andreputation - no local office - only held shares in Malaysian joint-venture company ffv co"i.
Court found Plaintiff had local goodwill and reputation:-
Plaintiff involved in state Government projects awarded to jrr co(prior bnsiness actiuitg) .
43
l-aw Cases - 17 /OS / 14
./ Plaintiff earning income and payrng taxes in Malaysia
transacting business in own natrre.
./ Jv co and local partners stressed association with plaintiff
when bidding for contracts (exrsfing goodtuil\-
'/ Plaintiffs name well-known to a section of the Malaysian
public, I.e. Malaysian Government and private sector
Defining starrUard (Reputation & Goodwiil):-
i) Question of fact - look at industry or trade concerned.
ii) Only a "modicum of evidence" required; the more well-known
the mark the easier to meet standard.
3.5 Dun & Bradstreet (singapore) Pte Ltd & Another v Dun &Bradstreet (Malaysia) Sdn Bhd (1994) - {passing-Off)
al"tPlaintiff Singapore subsidiary of 2"aplaintiff - members of
- international group established in 1857 - global recognition in creditinformation services.
Defendalt incorporated "general trading" company under same
narne in March 1992.Plaintiffs were not registered companies inMalaysia, not paying taxes locally, had no approval or exemption to
set up business.
Interim injunction granted - plaintiffs had "interest" to protect;
str I Plaintiff exlended business from Singapore toMalaysia before March 1992 - entered into subscription
agreements with 31 Malaysian companies since Jan1989.
o Possible overlap between Plaintiffs' and Defendants'
business.
. Confusion likely with presence of same - name
companies.
+4
5
LarvCases- 17l05/14
Non-payment of taxes etc irrelevant - Plaintiffs'business
in Malaysia transacted through Singapore subsidiary.
Defining standard (reputation & goodwill):-
J Reputation plus some market activity../ Scope of business activity secondary.
'/ Spillover reputation considered.
3.6 Petroliarn *""rrr, Bhd (Petronas) & Ors v Ktroo Nee Kiong
(2OO3) - (Dornain Names)
Plaintiff is a nationai petroleum company from Malaysia.
The Defendant registered several domain narnes containing'Petronas".Interim injunction sought to restrain passing-off of*Petronas" domain narne. Plaintiff was entitled to Injunction on basis
that- -
. Petronas is well-known locally and globally.
Registration of domain name tantamount to false
representation that defendant connected or associated with
Petronas or is owner of goodwill in name-
. Defendant eroded exclusive goodwill which damages Plaintiff
Since the WIPO Arbitration and Mediation Center had already
ordered the transfer of the domain name in suit, the Plaintifls requ"est
for an interim injunction was deemed irrelevant"
45
The online news is a product of technology. All you have to dois to open your computer which is hooked on the internet and surffor the latest news. An advantage of reading news online is that it isreally accessible. It would take a few clicks and you get theinformation you need. It is also very mobile. online news could beaccessed through your smartphones. It potentially helps theenvironment because it may lessen the production and use ofpaper. Also, it is available" at any given time as long as you areconnected to the internet. Although it gives online news leverage,the internet is also one of its limitations. If for example, theelectricity is down and you cannot in anyway go online, yoU cannotread your daily news in contrast to printed newspapers which aretangible even if there is no internet connection. Online news mayalso be relatively expensive compared to newspapers because itconsumes electricity and you have to pay for your internetconnection.
Newspapers are the classic messengers of information. Anadvantage of reading newspapers is that it is that simple to accessinformation. It is relatively less expensive, too. Newspapers couldbe easily recycled. They are numerous ways on how to reuse oldnewspapers. One could even make money out of them by sellingthem to junkshops for recycling. A disadvantage of newspapers isthat the latest news only comes in the morning. Some relevantnews may not be printed in time for the morning news. Anotherdisadvantage of newspapers is that it makes use of paper. This isone characteristic of newspapers that potentially harms theenvironment. Also, they take up space inside the home. Unless yousell them or know how to reuse them, they will remain stagnantinside your house.
In my opinion, there should be no competition between the two.They both have qualities that make up for what characteristic theother lacks. In the end, your own opinion is what matters the most.whether you prefer online news versus newspapers, or vice versa,it would not really matter as long as you get the information thateveryone deserves to know.
Online Nens - Pros and Cons
By Albert Moore
hb
The newspapers were hardly getting used to the news being telecast on thetelevision, when all of a sudden the advent of the internet brought a crucialblow to the newspaper industry. Most of the newspapers have not been ableto withstand the onslaught of the internet and have been forced into closure.Let us first see the basic difference between the newspapers and e-news.
Pros of the online news
The advantages of online news are mainly for the readers. some of theseadvantages are as follows.
The e-news is much faster than tlae newspapers. The moment somethinghappens in any part of the world it gets published on the internet withinseconds. ln case of newspapers there is a specific time limit for any news tobe reported in any parlicular newspaper. Suppose the newspaper goes forprinting at midnight, anything that happens after midnight is going to mostprobably get published the next day. ln these sorts of situation the newspaperoffers stale news to the readers who have already accessed the online news.
Any newspaper get published once, twice or maximum thrice a day. On theother hand e-news usually gets updated several times in 24 hours.
lf one has accesses to the internet, one does not have to wait for the deliveryman to deliver the newspaper.
E-news is considered to save paper and help at conservation of nature.
Cons of the online news
The online news has some disadvantages but those are mainly for thenewspaper publishers. The rates of subscriptions and advertisements aregreatly reduced in case of online news. This implies that as the number ofreaders of online news increases the revenue generation of the newspaperpublisher is falling drastically.
Ways for the newspapers to survive
There are only a few ways that the newspapers can resort to for surviving theblow of the e-news. sonre of the newspapers charge subscription to thereaders that like to read more than what is offered for free. There is just a linkfor "more" which can be activated and operational after paying somesubscription charges. lf you do not pay the subscription the "more" link cannotbe activated.
Most of the newspaper publishers have realized that if they want thenewspaper to survive they have io publish the newspaper in print as well asonline on the internet.
The iPad from Apple has brought some hope for the newspapers. There areapplications that allow the iPad user to access the internet and thenewspapers too.
\7
I
Nowadays it becomes necessary for the newspaper to make a unique offeringto its readers.
The other way for the newspaper publishers to survive is through blogging.There are chances that levying subscription can reduce the revenuegenerated but at the same it is also seen that unique blogs can bring a lot ofbusiness to the newspaper publisher.
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Article Sou rce : http:/i Ezi neArticles. oom I 6294683
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