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ISSUE 2/2019 • JULY 2019 KDN No ISSUE 2/2019 • JULY 2019 KDN No. PP 13699/01/2013 (031337) LEGAL INSIGHTS A SKRINE NEWSLETTER CONTENTS MESSAGE FROM 1 Message from the Editor-in- THE EDITOR-IN-CHIEF Chief 2 Announcements There were several significant developments in the Malaysian legal landscape since we ARTICLES published the previous issue of our Newsletter four months ago. In the first ever sitting 2 Filling the Gaps in Trade of a nine-member panel, the Federal Court held by a 5:4 majority that the civil courts Marks: The Trademarks Bill 2019 in Malaysia are bound by the rulings issued by the Syariah Advisory Council of Bank Negara Malaysia under sections 56 and 57 of the Central Bank of Malaysia Act 2009. 8 The Companies (Amendment) Bill 2019 12 Developments in Statutory In July 2019, the Malaysian Parliament passed two significant pieces of legislation. The Adjudication 2018 first is the Trademarks Bill 2019. This Bill is significant as it will introduce many new 16 Check Your Privilege concepts into our trademarks law when it comes into force. The other is the Companies (Amendment) Bill 2019 which will bring about much welcomed clarifications on several 20 Renewable Energy: The Rising Sun provisions of the Companies Act 2016. 22 Beefing Up Aviation Security The decision of the Federal Court and the two pieces of legislation mentioned above are discussed in this issue of our Newsletter. CASE COMMENTARIES Also featured in this issue are two other noteworthy decisions of the Federal Court; 10 Retention Sums – Is it Really Yours? – SK M&E Bersekutu the first determined whether retention sums under a construction contract are trust Sdn Bhd v Pembinaan moneys, and the second, whether a solicitor who unknowingly acts for a fraudster in a Legenda Unggul Sdn Bhd land fraud case owes a duty of care to the real owner of the land. 14 Can a Landowner Sue a Solicitor who Acted for a Our third annual review of Malaysian cases on statutory adjudication, a significant Court Fraudster to Sell the Land? – Pushpaleela R Selvarajah of Appeal decision on an application for a judicial management order and articles on v Rajamani Meyappa civil aviation security, renewable energy and legal privilege are also included in this Chettiar issue. 18 No Second Bite at the Cherry – CIMB Islamic I hope that you will find the contents of this issue of Legal Insights interesting. Bank Berhad v Wellcom Communications (NS) Sdn Bhd With best wishes, LANDMARK CASE Kok Chee Kheong Editor-in-Chief 4 Bank Negara’s SAC Findings Binding on Civil Courts – JRI Resources Sdn Bhd v Kuwait Finance House (M) Berhad ©2019 SKRINE. ALL RIGHTS RESERVED. THE CONTENTS OF THIS NEWSLETTER ARE OF A GENERAL NATURE. YOU ARE ADVISED TO SEEK SPECIFIC LEGAL ADVICE ON ANY TRANSACTION OR MATTER THAT MAY BE AFFECTED BY THIS NEWSLETTER. IF YOU REQUIRE FURTHER ANALYSIS OR EXPLANATION OF THE SUBJECT MATTER, PLEASE CONTACT OUR PARTNERS OR THE PERSON WHOM YOU NORMALLY CONSULT. AS THE LEGAL PROFESSION (PUBLICITY) RULES 2001 RESTRICT THE CIRCULATION OF PUBLICATIONS BY ADVOCATES AND SOLICITORS, KINDLY DO NOT CIRCULATE THIS NEWSLETTER TO PARTIES OTHER THAN PERSONS WITHIN YOUR ORGANISATION. 1 LEGAL INSIGHTS - A SKRINE NEWSLETTER ANNOUNCEMENTS FILLING THE GAP IN WHO’S WHO LEGAL AWARDS TRADEMARKS Gooi Yang Shuh and Lam Rui Rong provide a Our Firm has been named Malaysia Law Firm of the Year 2019 by Who’s Who Legal Awards on 16 May 2019. The Trademarks Bill 2019 (“2019 Bill”) was passed by the House Ten of our lawyers are featured as Recommended Global Leaders of Representatives and the Senate of the Malaysian Parliament in 11 practice areas in the publication’s listings for 2018/2019: on 2 and 23 July 2019 respectively. The 2019 Bill now awaits Charmayne Ong (Data (Telecoms & Media and Information royal assent from the Yang di-Pertuan Agong. Thereafter, it will Technology), Patents and Trademarks); Cheng Kee Check, To’ come into operation on a date to be appointed by the Minister Puan Janet Looi and Quay Chew Soon (M&A and Governance); of Domestic Trade and Consumer Affairs by notification in the Khoo Guan Huat (Patents and Life Sciences (Patent Litigation and Federal Gazette. Product Liability)); Leong Wai Hong (Litigation); Lim Chee Wee (Asset Recovery and Restructuring & Insolvency); Lim Koon Huan The 2019 Bill is a total revamp and overhaul of the current Trade Marks Act 1976 (“1976 Act”) and seeks to fill the gaps in the trade (Trade & Customs); Loo Peh Fern (Insurance & Reinsurance); marks regime in Malaysia, both figuratively and literally (note that Selvamalar Alagaratnam (Labour, Employment & Benefits) it will soon be ‘trademarks’ as opposed to ‘trade marks’). Below are some of the main takeaways on the 2019 Bill. Selvamalar was also recognised as a Recommended Thought Leader for Labour & Employment. DEFINITION OF “TRADEMARK” To come within the definition of ‘trademark’ under the 2019 Bill, a sign must be capable of: • “distinguishing goods or services of one undertaking from those GLOBAL ARBITRATION REVIEW 100 of other undertakings”; and • “being represented graphically”. Skrine is honoured to be recognised as one of only two Malaysian firms listed in the Global Arbitration Review (GAR) 100 rankings. The GAR 100 is a guide of approved law firms globally in the field The Madrid Protocol … allows of international arbitration. the simultaneous registration of trademarks in several jurisdictions with … one application BENCHMARK LITIGATION ASIA-PACIFIC 2019 Most notably, trademark protection will extend to cover non- Our Litigation and Arbitration practice has been ranked in Tier 1 traditional trademarks, such as colours, sounds, scents, and for the categories of Commercial and Transactions, Construction, holograms. The new definition of ‘trademark’ recognises that and Intellectual Property. Our practice was also ranked by such signs are capable of being trademarks and accordingly, may Benchmark in the Labour and Employment, Tax, and White- be registered trademarks provided they are capable of graphical representation. In view of the advancements in non-traditional Collar Crime categories. marketing methods, this will be a welcomed development for businesses seeking to rely on non-traditional marks as part of their corporate branding. The 2019 Bill also provides that a registered trademark shall be a personal or moveable property and may be the subject of a SENIOR ASSOCIATE security interest in the same way as other personal or moveable property. The concept of a “registrable transaction” is introduced, The Firm congratulates Aaron Yong Tze Ken on his promotion to and the particulars of a registrable transaction may be entered Senior Associate. in the Register of Trademarks upon approval by the Registrar of Trademarks (“Registrar”) of an application by a person claiming to be entitled to an interest in or under a registered trademark by Aaron is a member of the Corporate Advisory virtue of the registrable transaction or any other person claiming and Transactions, Mergers & Acquisitions to be affected by the transaction. The 2019 Bill itself does not and Capital Markets practices of our Firm. He identify what are “registrable transactions”; section 2 provides graduated from Aberystwyth University in 2011. that “registrable transactions” are transactions determined by the Registrar in guidelines or practice directions issued pursuant to section 160. 2 INTELLECTUAL PROPERTY LAM RUI RONG (L) Rui Rong is an Associate TRADE MARKS: THE in the Intellectual Property and Technology Media and BILL 2019 Telecommunications Practice of SKRINE. précis of what’s in store for brand owners GOOI YANG SHUH (R) Gooi is an Associate in the MADRID PROTOCOL Intellectual Property and Technology Media and Malaysia will be taking its first step in acceding to the Protocol Telecommunications Practice of relating to the Madrid Agreement concerning the International SKRINE. Registration of Marks, adopted on 27 June 1989 (“Madrid Protocol”). The Madrid Protocol is an international system that allows the simultaneous registration of trademarks in several jurisdictions with the filing of one application in a single office. Under the 2019 Bill, however, the unauthorised use of a sign Malaysia’s accession to the Madrid Protocol will eliminate the even in relation to similar goods or services would amount to need for an applicant filing an application with the Malaysian trademark infringement. office to file separate applications in each member country in which it seeks to protect its trademark. The exact manner in Further, the approach to determining the likelihood of confusion which the Madrid Protocol will be implemented in Malaysia will established in past Malaysian case law, that the Registrar be set out in subsequent subsidiary legislation. or the courts may take into account all factors relevant in the circumstances, is expressly codified in the 2019 Bill. MULTI-CLASS APPLICATIONS The 2019 Bill also provides a number of new defences to Multi-class applications (i.e. one trademark application claiming trademark infringement, including a provision that the use of a goods and services of several classes under a single trademark trademark to indicate the intended purpose of the goods bearing application) will be implemented. This may have some impact on the sign, including accessories or spare parts or service, will not costs and may simplify the application, maintenance, and renewal constitute infringement of a registered trademark, provided that processes, as there would only be one application or registration such use is in accordance with honest practices in industrial or number and one renewal date. commercial matters. trademark protection subsequently acquired will extend to cover distinctiveness may be a defence non-traditional trademarks against revocation for non-use COLLECTIVE MARKS Remedies for infringement Collective marks (i.e. a trademark owned by an association that The 2019 Bill explicitly provides that in addition to damages, a is used by its members to identify and distinguish the goods and plaintiff may be awarded an account of profits attributable to the services of the members of that organisation from others) will be infringement that has not been taken into account in computing afforded trademark protection.
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